text:
    Kellogg vs. Rand and others.
    Where two lots belonging to P. were subject to a mortgage thereon, given by a former owner of the mortgaged premises, and P. conveyed the south lot to L. and afterwards mortgaged the north lot to G}., and subsequently gave a second conveyance of the south lot to L., who accepted such conveyance, Held that the acceptance of the second conveyance did not impair the title of L. to the south lot under his first deed; and that as between him and Gf., he was not estopped from denying that P. had any title to the south lot at the time he mortgaged the north lot to Gr., or at any subsequent time.

      Held, also, .that/Upona foreclosure ofithe prior mMtgage, which was a lien upon Roth lots, the north lot which was mortgaged to Gr. afifei the first deed to L., must be first sold, to satisfy the amount due upon such prior mortgage.
    Where different parcels of mortgaged premises have been sold and conveyed absolutely, by the bwher bf thc equity of redemption, at different times', the equitable ■rule, upon a foreclosure b'f the mortgage, is to sell such parcels in the inverse order of their aliehation, to satisfy the debt. But the giving of a mortgage upon a part of the premises covered by the prior mortgage, is only an alienation of that part of th’d pf&hises to the amount due upon the second mortgage.
    If a part of the mortgaged premises has been mortgaged a second time, and the residue thereof has been sold and conveyed absolutely, subsequent to such second mortgage, the part mortgaged should be sold first, and the surplus .proceeds'of that sale, beyond the amount of the principal and interest due on the second mortgage, should be applied in payment of the first mortgage, before resorting to a sale of the residue of the premises, for that purpose, which were conveyed absolutely.
    This was an appeal by J. Cogswell, one of the defendants, from so much of the decree in this cause as directed the part of the mortgaged premises upon which the appellant held a subsequent incumbrance to be sold first, to satisfy the prior mortgage thereon to the complainant. In January, 1835, the defendant Rand, mortgaged to J.' Dater, a piece of land in the southeast corner of lot B. in Troy, being forty-three feet in front on Seventh-stteet, and running back seventy-four feet on the south line of lot B.j and also a strip of land four feet-in width on such south line extending thirty-one feet further west to the public alley betweeii Sixth and Seventh-streets. That mortgage was subsequently assigned to the Complainant, and was foreclosed in this suit: Three days after the giving of such, mortgage, Rand conveyed tlld fiqiiity of redemption in the mortgaged premises to C. Pierce. Pierce divided the premises into tvvo lots, of equal width on Seventh-street; with an alley or passage four feet in width on the rear of each lot. On the 9th of March in the same year, Pierce conveyed the south lot with warranty, to C. Lansing, with the perpetual right of way, or passage; over an alley of four feet in width between the southwest corner of the premises and the puBli'c alley between Sixth and Seventh-streets^ reserving to the grantor the right of way or passage by an alley of four feet in Width hbrbss the west end of. the premises thus conveyed to Lansingt This deed to íjánsiiig was duly recorded on the 11th of March, 1835. In June, 1835, Pierce mortgaged to the defendant Gray, the equity of redemption in the north half of the premises, with the privilege of the alley or passage as reserved in the rear of the south half in the deed to Lansing, to secure the payment of $8000. This mortgage also included other lands upon which there were prior incumbrances. These incumbrances were subsequently foreclosed, and the surplus moneys applied upon the mortgage to Gray; leaving due upon that mortgage, at the date of the decree in this suit, about $4000.
    After the ’conveyance of the south half of the mortgaged premises to Lansing, he conveyed the same to H. M. T. Powell; which conveyance was recorded a few days previous to the mortgage of the north half to Gray. Powell afterwards recon-veyed to Lansing. On the 15th of March, 1836, Pierce gave another deed of the south half of the mortgaged premises to Lansing, with the same privileges and reservations as in the deed of March, 1835, containing covenants of warranty and seizin, and that the premises were free from all liens, incumbrances, or ground rents. And on the 23d Of the same month Lansing conveyed to Dennis & Fitch, who gave back to him a mortgage upon the same premises, to secure the unpaid purchase money; which mortgage was subsquently assigned to Cogswell, the appellant. The case was heard before the vice chancellor upon the pleadings and proofs, as between the defendants Cogswell and Gray, in relation to their rights between themselves, as well as between them and the complainants. And by a stipulation of the solicitors it was admitted that the value of the north half of the mortgaged premises, included in the subsequent mortgage to Gray, was not sufficient to pay the balance due upon Gray’s mortgage after satisfying the debt and costs due to the complainant.
    The vice chancellor decided that Lansing, by receiving the second conveyance to him from Pierce, in March, 1836, which was subsequent to the mortgage of the north half of the premises to Gray, was estopped from alleging that the title to the south half of the premises was not in Pierce at the date of that conveyance ; and that the mortgage to the complainant, with the costs of the suit} must be paid out of the south half of the mortgaged premises if the same was sufficient to pay such mortgage. He therefore decreed that the premises conveyed to Lansing, and upon which Cogswell’s mortgage was a lien, together with the strip of land four feet in width extending from the southwest corner thereof back to the public alley, be first sold. And he directed the master to apply the proceeds of such sale to the payment of the complainant’s debt and costs, and the costs of the defendants’ solicitors and the expenses of the sale; and that if such proceeds were insufficient for that purpose, that the residue of the premises be also sold. From that part of the decree which directed the portion of the premises upon which Cogswell’s mortgage was a lien to be first sold, Cogswell appealed.

      H. Z. Hayner, for the appellant.
    Pierce took the whole, as Rand held it, subject to the prior mortgage to Dater. Pierce aliened the south lot to Lansing prior to the mortgage to Gray, and after this conveyance no title in such soúth lot was ever in Pierce. Pierce having covenanted with Lansing that he would rvarrant the title of this lot to him, his (Pierce’s) subsequent grantee, or mortgagee, (Gray,) can have as against Lansing and his grantees, no higher right than Pierce had, and the north half of the premises must therefore satisfy the whole of the prior mortgage. The deed from Pierce to Lansing, of 15th March, 1836, does not show that Pierce then owned the south lot; but being a full covenant deed, it was undoubtedly taken to bind Pierce and his estate, to keep this lot free from loss, from any incumbrance; such as this very mortgage to Dater. This deed from Pierce to Lansing cannot operate as an estoppel to prevent Cogswell from denying that Pierce then had any title, for it clearly appears that he had at that time no title. The chain of title is perfect without resorting to his title. It is not necessary for Cogswell to rely upon the last deed from Pierce. Estoppels are not favored in equity. (9 Wend. 209. 2 Cowen & Hill’s Notes, 1237. 8 Coioen, 586, 7. 6 Paige, 62 to 65.)

      D. Buel, jun., for the respondents.
    The complainant has a right to have his mortgage satisfied out of the premises, and ought not to be delayed by the litigation between the other defendants. He having the oldest mortgage on both parcels, and the defendant Gray having the next mortgage on one only of the parcels, the court will marshal the incumbrances, and direct in the decree of sale that the premises not included in Gray’s mortgage be first sold. (1 Story's Eq. 588, I 633. 2 Forth. Eq. b. 3, ch. 2, § 5. A tty. Geni. v. Tyndall, Amb. 614, 615. Aldrich v. Cooper, 8 Vesey, 388, 391, 395. Selby v. Selby, 4 Russ. 366. N. Y. Sp N. Jersey Steamboat Co. v. Association of Jersey Co., Hopkins' Ch. 460. Evertson v. Booth, 19 John. (case at law,) 486. Coonrad v. Harrison et al., 3 Leigh's Rep. (court of appeals,) 532.) As between Gray and Cogswell, Gray has the prior equity. Gray’s mortgage is prior in date to Cogswell’s, and was recorded when Cogswell’s was executed. Consequently Cogswell was bound to know that Gray had a right to compel Kellogg to resort first to the south lot. The conveyance from Pierce and wife to Lansing, of 6th June, 1835, does not alter the equity. For, on the facts before the court, law will presume that the title returned to Pierce and was in him long after the mortgage to Gray was given. Lansing, by taking the second conveyance from Pierce, is estopped from alleging that Pierce was not seized of the south lot at the time of such conveyance. (Coke Litt. 352. Sinclair v. Jackson, 8 Cowen, 585, 6. Dewy v. Bar dwell, 9 Wend. 65. Jackson v. Parkhurst, 9 Id. 209. Dunn v. Cornell, 3 John. Cas. 174. Carver v. Jackson, ex dem. Aston et al. 4 Peters, 83 to 88.) Cogswell, as assignee of the mortgage to Lansing, has no higher claim than Lansing would have had. The as-signee of a chose in action sits in the seat of the assignor. (Webster v. Wise, 1 Paige, 320. Coveil v. Tradesmen's Bank, 1 Id. 131. Pendleton v. Fay, 3 Id. 202 to 206.) Gray has the same priority in equity, as he would have had if Pierce had made no other conveyance than that of the 15th March, 1836.
   The Chancellor.

The decree is erroneous in directing the south half of the mortgaged premises to be sold first, even if the vice chancellor was right in supposing that Gray’s mortgage was entitled'to a preference over that of the appellant. The admission of the parties that, the part of the premises included in Gray’s mortgage is not sufficient to satisfy the balance due upon that mortgage, and also to satisfy the complainant’s mortgage and the costs,, is not sufficient to throw the whole charge of the first incumbrance and the costs, upon the south half of the premises, which was conveyed to Lansing in fee. For if the part included in Gray’s mortgage is worth any thing beyond the amount due on that mortgage, the surplus must, in any event,, be applied in part payment of the complainant’s debt and costs, before the part of the premises, conveyed to Lansing can be, resorted to for that purpose. If Gray’s mortgage, therefore, was actually older than the first conveyance to Lansing, still the decree should have directed the master to sell the part of the mortgaged premises not embraced in that conveyance, first; and after deducting, from the proceeds, the amount still due upon Gray’s mortgage, to apply the residue of such proceeds in satisfaction of the complainant’s debt and costs, as far as it would go. The cáse would have been different, if Gray had had a conveyance in fee of that part of the premises, or if he was claiming under one who had received a conveyance in fee from Pierce, The equitable, rule is, that as between subsequent purchasers of different parcels of the premises, such parcels are to be sold in the inverse order of alienation. But a subsequent mortgage of a part of the. equity of redemption, by the owner of the whole of the mortgaged premises, is only an alienation of that part, thereof to the extent of the money due on such junior mortgage, and for which the owner of such- junior mortgage has no other security which should in equity be first resorted to. The conclusion, however, at which I have arrived upon the merits of this case, renders it unnecessary that I should place .the reversal or modification of the decree upon that ground.

I think the vice chancellor erred in supposing that the acceptance, by Lansing, of a second deed for a lot which had been previously conveyed to him by the same grantor, could operate as an estoppel in: favor of a mere stranger to that transaction. For the mortgage of another and a distinct lot to Gray, by the-grantor-in. that deed, nine months before, created no privity whatever in relation to this lot; the title to whicli was not in the mortgagor but in Powell, at the date of such mortgage. Jf the testimony of Powell did not show the fact to be otherwise, it perhaps might have been supposed that Powell had sold his interest in the south half of the mortgaged premises to Pierce, so that he had again become the owner of the legal title. But Powell swears positively he did not convey to Pierce; but that he actually recon-veyed to Lansing, although that conveyance is not recorded. What the object was in obtaining this second deed from Pierce, unless it was to get an express covenant against incumbrances, to satisfy Dennis and Fitch, who purchased from Lansing about the time such deed was given, it is difficult to conjecture. It would not, however, have the effect to destroy or in anywise impair the title which Lansing previously had in the premises; or change the equities which previously existed between him as the owner of the south half, and Gray as an incumbrancer of the north half of the mortgaged premises, in relation to the lien of the complainant’s mortgage. When Gray received his mortgage upon the north hqlf, he had constructive notice, that the part of the premises upon which he took his lien was bound in equity to sustain the whole burthen of the prior incumbrance. For the deed of March, 1835, to Lansing, for the south half of the mortgaged premises, and the conveyance from Lansing to Powell, were then both upon record. In addition to this, Gray had express notice that the south half had been previously conveyed by Pierce. For the mortgage itself recites the reservation of the right of passage in the rear of the south half of the premises contained in the conveyance to Lansing, and gives him that right as an appurtenant to the north half which was mortgaged to him. The date of Cogswell’s mortgage is whplly immaterial; as it relates back, in settling these priorities, to the date of the first deed to Lansing, under whom he claims.

The whole burthen of the complainant’s mortgage, and the costs, should have been thrown upon the part of the premises not embraced in the deed to Lansing, in the first place; and the part embraced in that deed should only be sold in case the pro-. ceeds of the sale of the other part proves to be insufficient. The decree must, therefore, be so modified as to direct the master to sell the north half of the mortgaged premises, not embraced in the deed to Lansing, with the right of passage across the rear of the south half by a four foot alley, as reserved in the deed, together with the four foot alley running from the southwest corner of the south half of the lot to the public alley; subject, however, to the right of the owners of the south half to use the same for a passage, as granted in the deed to Lansing. And the master must pay the debt and costs and expenses, specified in the vice chancellor’s decree, out of the proceeds of such sale; and also the taxable costs of the appellant upon this appeal. The residue of the proceeds are to be brought into court to abide its further order. And if the part of the premises thus sold do not bring sufficient to pay such debt, interest, costs and expenses, then the decree must direct that the master sell the part of the premises described in the conveyance tovLansing, subject to the reservation of the right of passage by the purchaser of the north half and his heirs and assigns, and with the right of passage through the four foot alley on the south line of lot B. as granted to Lansing in such deed. The proceeds of such second sale must be applied to pay the residue of such debt, interest and costs and expenses, and the surplus must be brought into court to abide its' further order.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Burchard vs. Phillips and others.
    Where B. loaned money to the owner of the equity of redemption of mortgaged premises to pay off aprior but second mortgage thereon, and took a mortgage upon the premises as a security for the repayment of the loan, and in consequence of the false representations of the mortgagor, that there was no other incumbrance upon the premises except the two prior mortgages, B. neglected to take an assignment of the second mortgage to protect himself against the incumbrance of a judgment, which was in fact a lien upon the premises, but subordinate to the lien of the first and second mortgages; Held, that the equity of B. to be paid the amount of his mortgage out of the surplus proceeds of a sale of the premises, upon a foreclosure of the second mortgage, was equal to that of the owner of the judgment; although by the fraud of the mortgagor, the judgment creditor had obtained a legal priority.

      And B. having obtained a master’s report in his favor and a payment of his mortgage out of the surplus moneys, under a regular order of the court, in consequence of the neglect of the judgment creditor to give notice of his claim in time; Held, that B. was entitled to retain the iponey, which he had then become legally entitled to by his superior vigilance.
    Where the surplus moneys arising from the sale of mortgaged premises have been paid to a junior incumbrancer, under a regular order of the court, founded upon a master’s report, in consequence of the neglect of a prior incumbrancer to give notice of his claim in due time, it is too late for the latter to obtain relief by a summary application to the court in the foreclosure suit.
    But so long as the surplus fund remains in or under the control of the court, it is competent for such court to let in the prior incumbrancer to assert his claim to the surplus moneys, where his neglect to file his claim thereto in season is satisfactorily accounted for.
    Where a fund in the court of chancery has been paid Out to a person not entitled to it, under an order irregularly obtained, the court has jurisdiction, by a summary proceeding, to compel the party to restore the tund, thus improperly obtained without the authority of the court.
    This was an appeal from a decision of the Vice chancellor of the eighth circuit, denying the application of the appellants to set aside a master’s report^ as to the surplus moneys in a foreclosure suit, and the proceeding's thereon; and to hav.e the surplus moneys which the Respondent C. H. Bryan had received, under the order of the court, refunded by him.
    The mortgaged premises formerly belonged to the defendant J. Phillips, who mortgaged the same to the complainant in 1837; and the bill in this suit was filed to foreclose that mortgage. In September, .1840, Phillips conveyed the mortgaged premises to the defendant Parrish, subject to the payment of that mortgage, and took back from him another mortgage upon the premises, for $2117, to secure the payment of the purchase money, which Parrish had agreed to give for the premises, beyond the amount of Burchard’s mortgage. In October, 1838, the appellants, the Messrs. Willetts of the city of New-York, recovered a judgment, in the supreme court against Parrish, on which there was due at the time of the master’s sale in this suit, in October, 1843, between four and five hundred dollars. On the 1st of May, 1841, Parrish applied to the respondent Bryan, as the executor and trustee of the estat^ of W. Crosset, for a loan of $1000, to be applied in part paymebt of the mortgage given to Phillips for the purchase money of the premises., Parrish represented to him that there were no other incumbrances upon the premises, except that mortgage and the prior mortgage which had been given to Burchard. Upon the faith of that representation, and believing the same to be true, Bryan as such executor and trustee loaned Parrish the f1000, and took a mortgage upon the premises to secure the repayment of the loan; and the money thus loaned was applied in part payment of the mortgage which had been given to Phillips for the purchase money of the premises. The mortgage given to Phillips was afterwards foreclosed in chancery, for the non-payment of the balance due thereon, and the usual decree for sale was entered in that suit; which decree was subsequently assigned to Bryan the respondent.
    In 1843, the complainant filed his bill in this cause to foreclose his mortgage, and the usual decree for foreclosure and sale was entered. Under that decree the mortgaged premises were sold by the master, on the 25th of October, 1843, and produced a surplus of $1898,28 beyond the complainant’s debt and costs, and the master’s fees and expenses upon the sale. The surplus was brought into coart, and the report of sale was confirmed on the 4th of November, 1843. On the 6th of November, Bryan filed his claim to the surplus, as the assignee of the decree upon the mortgage given to Phillips, and as subsequeht mortgagee of the premises for the $1000 loan of the 1st of May¿ 1841. And on the 15th of the same month the usual order of reference as to the shrplus was regularly entered. The master’s report was filed á’nd confirmed, and an order was made by the court td pay the surplus moneys to Bryan, on the 22d of November, 1843; and the same were paid to him by the clerk on that day. On the 8th of November, 1843, the attorneys for the appellants learned for the first time that the judgment of the appellants was a lien upon the mortgaged premises, and that the premises bad been sold under a decree of foreclosure. They immediately took measures to obtain the necessary information to enable them to make a claim for the surplus moneys. But the notices of their claim did hot reach the master, and the clerk, until two or three days after 'the money had been paid out to the respondent Bryan, under the order of the court.

      J. Rhoades, for the appellants.

      M. T. Reynolds, for the respondent.
   The Chancellor.

The equitable right of the respondent to the surplus money, is at least equal, if not superior, to that of the appellants. And he having obtained the same by due course of law, and his proceedings having been strictly regular, there is no reason why this court should interfere to deprive him of the fruits of his superior vigilance. The mortgage to Phillips, for the purchase money, although subsequent in time to the judgment of the appellants against the mortgagor, was entitled to preference in payment. And if the respondent, when he advanced $1000 of the trust moneys in his hands ’to be applied towards that mortgage, had taken an assignment of the mortgage pro tanto, instead of a new mortgage upon the premises, there could be no pretence, on the part of the appellants, that their judgment was entitled to a preference in payment over the moneys thus loaned by the respondent. The money, however, was advanced to pay a portion of the lien entitled to a preference, upon the security of the mortgaged premises alone, and upon the faith of Parrish’s representations that there were no other incum-brances upon the premises than the two mortgages to Burchard and to Phillips, and that the new mortgage for the loan would take the place in point of priority of the part of the mortgage upon which the money was applied. And the appellants now ask the court to give them the benefit of this mistake of the respondent, after he has avoided the effect thereof by obtaining the surplus moneys Under a regular proceeding, according to the course and practice of the court.

It is not necessary to express any opinion upon the question whether the respondent, under the circumstances, was not in equity entitled to be subrogated to the rights of the mortgagee upon whose mortgage this loan was applied; so as to give the respondent the preference over the general lien of the judgment, even if the appellants had filed their claim before the reference to the master in relation to the rights to the surplus moneys. For if the appellants had acquired a preference by a mere accident or mistake on the part of the respondent, and had lost such preference afterwards by a similar mistake or accident, on their' part, in neglecting to inquire as to their rights and to file their claim in season, a court of equity ought not to interfere to restore the preference which they had acquired as well as lost by mere mistake and accident.

I also think the vice chancellor was right in supposing that it was too late for the appellants to apply for summary relief, after the court had lost its control over the surplus moneys by a payment thereof to another claimant, under an order of the court regularly obtained. So long as the fund remains in court, I have no doubt it is competent for the court to let in an incum-brancer to assert his claim to the surplus moneys, where the equity of the case is with him, and his neglect to file his claim in due season is satisfactorily accounted for. In the analogous case of a bill to administer the estate of a deceased person, a creditor who has neglected to come in and prove his debt before the master within the time limited for that purpose, may be per-, mitted to come in, upon terms, so long as the fund remains under the control of the court. I am not aware of any case, however, in which the court has permitted a creditor to come in, under the decree, after the fund has all been paid out to other creditors or legatees, under an order regularly obtained. But where the money has been paid out under an order irregularly obtained, I presume the court has jurisdiction, in a summary proceeding, to compel a party who has obtained possession of its funds improperly, and without its authority, to restore the same.

Here the proceedings, on the part of the respondent, were not only perfectly regular, but they appear to have been conducted in good faith. It is true he had notice of the recovery of the complainant’s judgment as early as October, Í842. But from the information obtained from Parrish, and from the letter of Williams, who was agent of the appellants in obtaining the security for their debt, the respondent had reason to believe that the payment of that judgment had been fully provided for without resorting to the lien thereof upon the mortgaged premises.

The order appealed from must therefore be aiBrmed with posts.


text:
    Snyder vs. Stafford and others.
    Where a master, to whom was committed the execution of a decree of sale of mortgaged premises in the usual form,’ was the nephew of the wife of the surety of the assignee of the decree, for the payment of the purchase money agreed to be paid for the assignment of the decree, and also for the assignee’s indemnifying the complainant against any trouble and costs to which he might be subj ected in consequence of such assignment, by a junior judgment creditor of the mortgagor, who had previously entered into a negotiation for the purchase of the decree; and where there were conflicting claims to the surplus arising from the sale of the mortgaged premises ; fletó!, that the master was not incompetent to act as such, on account of his connection by affinity with such surety; the surety not being a party to the suit, nor a party in interest in the sale of the mortgaged premises, or in the proceeds of the sale; and the duties of the master under the decree not being judicial, but ministerial only. .
    The usual decree of foreclosure and sale of mortgaged premises', does not give the master who executes it any judicial powers, so as to bring the case within the equity of the provision of the revised statutes, which declares that no judge of any court can sit as such in any cause in which he would be excluded from being a juror by reason of consanguinity or affjnity to either of the parties.
    Where the decree directs the master to inquire and ascertain in what order the different parcels of the mortgaged premises should be sold under the deeree, in order to protect the equitable rights of the several persons claiming to have interests therein, or liens on the respective parcels, the master, in determining this question, acts quasi a judge of the court.
    The owner of a decree, for the sale of mortgaged premises, has no right to control the action of the master in relation to the order of the sale of the different parcels of sueh mortgaged premises.
    Where there are conflicting claims of junior judgment creditors, to the surplus arising from the sale .of mortgaged premises, such creditors should apply to the court, previous to the sale under the decree, for directions that the premises may he sold in sueh manner as will enable them to settle their respective rights upon the reference as to the surplus proceeds of such premises.
    Where mortgaged premises have been spid a,t a sheriff’s sale, under a judgment junior to the mortgage, and where the time for redemption has not expired, the general lien of the judgment is turned into a specific lien upon the premises, to the extent of the amount of the bid at the sheriff’s sale and of the interest thereon.

      Claims upon surplus moneys arising froru the sale of mortgaged premises, must he. settled upon the usual order of reference, after such moneys have been brought into court; in order to enable judgment creditors and others to file their claims, to the same, as prescribed by the rules of the court.
    This was an appeal by John E. Taylor and James P. Cra-mer, from an order of the vice chancellor of the fourth circuit, made in this cause upon the application of the respondent Amos Stafford, setting aside a master’s sale. The bill was filed on the 20th of March, 1843, to foreclose a mortgage given by R, Stafford, to the complainant J. Snyder, in September, 1842, upon a farm of 64 acres in the town of Saratoga, and upon a village lot in Schuylerville, to secure the payment of $51641 and interest; which mortgage was given for the purchase money of the farm. The mortgagor and his wife, and two or three other persons who were supposed to have some interest in the mortgaged premises as subsequent purchasers or otherwise, were made defendants. On the 12th of September, 1^43, the usual decree of foreclosure and sale of the whole mortgaged premises, in parcels, or of so much thereof as should be necessary to pay the amount of the mortgage, being $1736, with interest and costs, was made and entered; but the village lot was directed to be sold subject to the contingent right of dower of the wife of the mortgagor therein. The surplus money, if any, the master was directed to bring into court to abide its further order. But as none of the judgment creditors of the mortgagor were made parties to the suit, and as their several claims, as hereafter stated, were not known to the court at the time of making the decree, no special directions were given to the master as to the order in which the mortgaged premises should be sold.
    In February, 1843, R. Stafford, the mortgagor, confessed a judgment to his mother for about $1400 ; which judgment she shortly afterwards assigned to the respondent A. Stafford. On the 20th of April, in the same year, and subsequent to the commencement of this suit, the respondent caused the mortgaged premises to be sold by the sheriff, by virtue of an execution on that judgment; and he became himself the purchaser of the village lot at such sale, for the sum of $325, and of the farm for the sum of $350. In March, 1843, Haight and Gillespie recovered a judgment against the mortgagor for about $150. And another judgment was recovered against him upon a note, for about $200, in the same month ; upon which note the appellant J. P. Cramer and his copartner were endorsers. Both of those judgments were liens upon the mortgaged premises at the time of the commencement of this suit, and at the time of the sheriff’s sale; and the last judgment was subsequently assigned to J. P. Cramer and his copartner, who had been obliged to pay the note as endorsers. Shortly after the sheriff’s sale, R. Stafford conveyed all his right and interest in the equity of redemption of the . mortgaged premises to his brother, the respondent; who thereupon took possession thereof and contracted with E. Purdy for a sale of the village lot to him. J. P. Cramer insisted that this assignment of the equity of redemption was for the purpose of defrauding him and his copartner, and of preventing them from redeeming the' premises from the sheriff’s sale, upon another judgment, of about $500, which they shortly afterwards recovered against Rensselaer Stafford.
    In July, 1843, the respondent A. Stafford entered into a hégo-tiatiou with the complainant for the purchase of his interest in the mortgage, but in such a manner that the proceedings in the foreclosure suit might be continued in the name of the latter; the complainant to have the control' of the suit and proceedings until the amoimt of the mortgage money was paid, or secured to his satisfaction. In pursuance of such arrangement, A. Stafford advanced to the complainant, at different times, previous to the 29th of September, 1843, the sum of $900. On the last mentioned day the complainant, without the knowledge or consent of A. Stafford, sold and assigned the whole decree in this suit to J. P. Cramer. And Conrad Cramer became the surety for J. P. Cramer, to the complainant, for the payment of the purchase money for such decree, at a future time, and that he would indemnify the complainant against any trouble and Costs to which he might be put by A. Stafford in consequence of such sale and assignment of the decree.
    The mortgaged premises were advertised for sale under the ' decree, for the 4th of November, 1843, by master Porter, who was a nephew of the wife of Conrad Cramer. When the master announced, on the day of sale, that he would put up and sell the village lot first, the counsel for the respondent objected, and requested the master to sell the farm in the first place. But upon the production of ’affidavits of J. P. Cramer and E. F. Bul-lard, showing the interest of the former in the decree, under the assignment, and his lien upon the premises by virtue of his judgment, and that he believed the judgment of the respondent and also the conveyance of the equity of redemption were fraudulent as against him, and that neither of the parcels of the premises would sell for sufficient to pay the whole amount of the mortgage, if the $900 was not considered as a payment thereon, and that the village lot would sell for the greatest amount in proportion to its value, the master decided to put up that lot first. It was put up accordingly. And the terms of sale were for cash, and that'unless the money was paid down the premises would be put up again and resold. And the respondent became the purchaser for the price of $1200. And the master thereupon filled up a-deed for the lot and tendered it to the purchaser, before proceeding to the sale of the other lot; and J. P. Cramer consented to allow the $900 advanced by A. Stafford to the complainant in part payment of the $1200. The respondent, however, refused to complete his purchase, until he could see the result of the sale of the residue of the premises; unless the master would also deduct from the amount of the purchase money the $325 for which the village lot had been struck off at the sheriff’s sale. This the master declined doing, and decided that he would put up the lot for sale a second time, after waitmg aboutan hour. The respondent thereupon applied for an adjournment of the sale, but the master thought it was his duty to proceed to a resale of this lot at that time. He consented, however, to adjourn the sale of the farm till a future day. The village lot was. accordingly put up again, and was sold to the appellants, for the sum of $910; and the sale of the farm was adjourned.
    The respondent thereupon applied to the vice chancellor to get aside the sale of the village lot, or for such other order as should be just; insisting, among other things, that the master was disqualified from making the sale, on account of his connection by affinity with Conrad Cramer, the surety for J. P. Cramer, the assignee of the decree. The Nice chancellor decided that the sale was unauthorized, on that ground, and set it aside. He also directed that, upon R. Stafford’s paying the amount due on the decree, within thirty days, after deducting therefrom the $900 advanced by him to the complainant, with interest from the time the advances were made, all further proceedings by the complainant upon the decree should be stayed ; and that A. Stafford be at liberty, at any time thereafter, to apply for an order to sell the mortgaged premises to reimburse the amount paid by him on the decree.

      E. F. Bullard & M. T. Reynolds, for the appellants.

      Judiah Ellsworth, for the respondent.
   The Chancellor.

I think the vice chancellor erred in this case, in supposing that the master who made the sale was incompetent to act on account of his connection by affinity with Conrad Cramer. In the first place, C. Cramer was not a party to the suit, nor was he a party in interest in the sale of the mortgaged premises, or in the proceeds of the sale. ' He had indeed become security for J. P. Cramer for the payment, to the-complainant, of the amount of the purchase money agreed to be paid upon the assignment of the decree. He was also security, that J. P. Cramer would indemnify the assignor against trouble and costs to which he might be put by A. Stafford, on account of that assigmhent. But I am not able to perceive how his liability as such surety gave him any interest whatever in the performance of the duties of the master upon the sale, any more than if he had bScome an endorser upon a note to the bank, to enable the drawer thereof.to raise money to purchase this decree.

Again; there was nothing in the directions of the decree, under which the sale was to be made, giving to the master any judicial powers whatever, so as to bring the case within the equity of the provision of the revised statutes, which declares that no judge of any court can sit as such in any cause in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. (2 R. S. 275, § 2.) Had the decree contained a provision that the master should inquire and ascertain in what order the different parcels of the mortgaged premises should be sold under the decree, in order to protect the equitable rights of the several persons claiming to have interests therein, or liens on the -respective parcels, the master, in determining that question, would have been quasi a judge of this court. But in making the sale under the decree, in this cause, as the decree.was made and entered, he was performing a ministerial act, in the same manner as a sheriff who had an execution against two lots of land would act ministerially in determining which lot he would sell first.

The mistake which both parties fell into in this case was in supposing the proper time, to settle their conflicting claims to the surplus of the mortgaged premises, after paying the amount of the decree, was at the sale ; and without any previous order of the court in relation to the subject. And both also appear to have fallen into the very common error of supposing that the owner of the decree had the right to control the action of the master, and to direct which parcel should be sold first. Hence the contest between A. Stafford and J. P. Cramer to become the assignees of this decree; instead of applying to the court, as judgment creditors of. the mortgagor having liens upon the premises subsequent to the mortgage, for the proper directions, that the premises be sold in such a manner as to enable them to settle their respective rights upon the reference as to the surplus proceeds of the mortgaged premises. Here the situation of the several liens subsequent to the mortgage was such that the rights of the owners of those several liens could not have been protected by selling either parcel of the mortgaged premises first, and applying the whole prpceeds of that parcel towards the mortgage debt; even if the validity of A. Stafford’s judgment, and of his subsequent conveyance from the mortgagor, had not been disputed. For by the sheriff’s sale the general lien of the judgment upon the whole of the mortgaged premises was turned into two specific liens, upon the farm and the village lot respectively ; to the extent of the amount bid at the sheriff’s sale uport each, and the interest thereon. And as these specific liens were both created at the same time, the proper way to protect the holder thereof, and to give the owners of the two junior judgments, recovered in March, 1843, the benefit of those general liens, as well as the right to contest the validity of A. Stafford’s judgment, under which he claimed the two specific liens, was to direct the farm and village lot both to be sold, separately; even if one of them was sufficient to pay the amount of the decree ; and that the master should pay such decree, and the costs, rate-ably out of the proceeds of each parcel, and bring the residue into court, specifying in his report the surplus proceeds of each parcel. The amount of the specific liens, created by the sheriff’s sale, upon the farm and village lot respectively, if valid, would then be entitled to a preference in payment out of the surplus proceeds of the parcel of the premises upon which such liens existed at the time of the master’s sale; in the same manner as if R. Stafford had given to his brother separate mortgages upon the farm and village lot respectively, for the same amounts, on the day of the docketing of the judgment under which these specific liens were acquired. And the two judgments recovered before the conveyance of the equity of redemption by R. Stafford, to his brother, and which were general liens upon the residue of the surplus proceeds of both parcels of the mortgaged premises, would then be entitled to payment out of such proceeds, according to their legal priorities in reference to each other. If any thing remained, it would belong to A. Stafford as the grantee of the equity of redemption which was conveyed to him subsequent to the sheriff’s sale; unless the owners of the junior judgment of $500, which was subsequently recovered, should succeed in showing the conveyance fraudulent as against them.

The several claims upon the surplus moneys, after paying the amount of the decree and costs out of the proceeds of the farm and village lot rateably, would of course have to be settled upon the usual order of reference, after such surplus moneys had been brought into court; in order to enable all judgment creditors and others to file their claims to the same, as prescribed by the rules of the court. And upon such reference, the validity of the judgment under which A. Stafford claims the specific liens upon the surplus proceeds of the farm and village lot respectively, and the validity of the sale of the equity of redemption in both parcels to him, would form proper subjects of inquiry and settlement.

Under this decree, which only authorized the master to sell so much of the mortgaged premises as might be necessary to pay the complainant’s debt and costs, and which could be sold separately without injury, a special order of the court would have been necessary to enable him to sell both parcels, so as to protect the rights of the owners of the several subsequent incum-brances ; if the value of either parcel was more than sufficient to satisfy the decree and the costs of sale. But as the value of each parcel of the mortgaged premises was evidently insufficient, the master of course must sell both to comply with the directions of the decree. And if both were sold, it was perfectly immaterial which parcel was sold first. For if the master paid more than a rateable proportion of the proceeds of either parcel towards the satisfaction of the complainant’s debt and costs, the court would of course direct it to be refunded out of the proceeds of the sale of the other parcel, in settling the rights of the junior incum-brancers and claimants as between themselves. There was no error therefore in selling the village lot first; and I can see no sufficient excuse on the part of the respondent for refusing to complete his purchase. And if the master erred at all, it was in not refusing to adjourn the sale of either parcel, upon the application of the respondent.

The affidavits show that the offer was made to the respondent to allow him to deduct the amount of his interest in the decree from the $1200 which he had bid for the village lot. And as the master had no power to decide upon the validity of the claim to the $325, as a specific lien upon the surplus proceeds of that lot, the refusal of the purchaser to complete his purchase unless the $325 was deducted was unreasonable and improper. Nor was such purchaser authorized to wait and see what speculation he could make upon the sale of the other lot, before he decided whether he would comply with the terms upon which the village lot had been struck off to him. The master was therefore right in putting up the village lot again, and reselling it to the highest bidders who were willing to comply with the terms of the sale. The appellants were accordingly entitled to the benefit of their purchase; and the order setting aside the sale to them was erroneous. The order was also erroneous in granting an indefinite stay of the sale of the residue of the mortgaged premises.. For it deprives the junior judgment creditors of the power to litigate their claims to the surplus proceeds of the mortgaged premises, upon the usual order of reference; and leaves the whole decree standing in full force against both portions of the mortgaged premises. Under this order no one could with safety redeem either parcel of the premises «from the sheriff’s sale; as the expense of the further litigation which would necessarily arise in adjusting the claims upon each parcel, under the decree, would deter any prudent man from redeeming.

The order appealed from must therefore be reversed, and the motion to set aside the sale of the village lot must be denied, with $15 costs; and the purchasers of that lot are to be entitled to the rents and profits thereof which have accrued subsequent to the purchase. But to protect the rights of all parties, the. master must be directed to proceed to the sale of the farm, upon a notice of three weeks. And he must pay, out of the proceeds of the sale of both parcels rateably; first, the costs of the foreclosure and the costs of the master, &c. upon both sales; next, to J. P. Cramer, as assignee of the decree, the amount which would have been due to the assignor, exclusive of the $900 advanced to him by A. Stafford; and thirdly, to A. Stafford as the equitable owner of the residue of the decree, the $900 and the interest thereon from the dates of the respective receipts given for such advances. He must also bring the residue of the money into court, and.specify the amount of the surplus proceeds of each parcel of the mortgaged premises separately. And this order is to be without prejudice to the rights of these parties, or of any other persons claiming such surplus proceeds, or any part thereof, to give written notice of their claims to the master, or to the clerk of this court; and to have their rights to the same settled upon a reference, in the manner prescribed by the 136th rule of this court.

The object in directing a sale upon a three weeks’ notice is to enable the master to complete the sale of both parcels before the expiration of the fifteen months allowed to redeem the premises from the sheriff’s sale; in order to give the junior judgment creditors the same right to the surplus proceeds, without an actual redemption, as they would have had if the master had proceeded to sell the farm, in November last, instead of adjourning the sale of that part of the premises upon the application of the respondent’s solicitor.

The novel questions arising in this case render it proper that I should leave the appellants to bear their own costs on this appeal. Neither party, therefore, is to have costs as against the other in this court.


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    The Trustees of the Leake and Watts Orphan House vs. Lawrence and others, executors, &c.
    Where bankers received moneys of their customer on deposit from time to time, and an agreement was made between them that such customer should be allowed five per cent, interest upon a portion of the deposit from a specified time until paid, and after the death of the customer the bankers made a false entry in their books, and concealed from his personal representatives the fact of the existence of the portion of the deposit upon which the five per cent interest was payable, for the purpose of defrauding them out of that portion of the deposit; Held that the bankers were liable to pay interest at the legal rate, upon that portion of the fund, from the time of the commission' of the fraud until the money was paid.
    A judgment recovered against the surviving Copartner, for a debt alleged to have been due by the firm, in a suit in which the representatives of the deceased copartner were not parties, is not evidence as against such representatives of the indebtedness of the decedent, in a subsequent suit to charge his estate with the debt.
    Whether such a judgment would be evidence of the indebtedness as against the personal representatives of the decedent, where one of the representatives was himself the surviving copartner against whom the judgment was recovered. Queei'e?

    Where a debt is due from a copartnership, and one of the copartners dies leaving the other copartner surviving and perfectly responsible; and the creditor neglects to pursue his remedy against the survivor until the cause of action is barred as against him, by the statute of limitations; it seems that such creditor cannot after-wards come into a court of equity to obtain satisfaction out of the estate of the decedent, although the surviving copartner has then become insolvent.
    Whether the provisions of the revised statutes limiting the time for commencing suits in chancery, where that court has exclusive jurisdiction of the suit, are retroactive in their operation. Qiuere 1

    Where one member of a copartnership firm dies, a creditor of the firm cannot sustain a suit in chancery against the representatives of the deceased copartner, to recover his debt out of the decedent’s estate, without showing in the bill that the surviving copartner is insolvent; or stating some other sufficient reason for not proceeding at law against the surviving copartner.
    In the case of a debt which is joint, and not several, if one of the debtors dies, no right of action or suit, either at law or in equity, accrues to the creditor against the representatives of the deceased debtor, until the surviving debtor becomes insolvent or irresponsible; and the statute limiting the time for the commencement of suits which are exclusively of equitable cognizance, does not begin to run until that time.
    Where a debt is joint and several, the creditor may proceed against the surviving debtor, or against the representatives of the deceased debtor, at his election, to obtain satisfaction of his debt. But if the debt is joint and not several, he cannot proceed in chancery against the estate of the deceased debtor, without stating in his bill a sufficient excuse for not suing the surviving debtor, at law, to obtain satisfaction of such debt.
    This was an appeal by D. S. Jones and H. K. Bogert, two of the executors of Augustine H. Lawrence, deceased, from a decree of the late assistant vice chancellor of the first circuit. The bill was filed in June, 1838, by the surviving executor of John G. Leake, deceased, to recover a debt due to Leake at the time of his death, in June, 1827, from his bankers, A. H. Lawrence and A. N. Lawrence; the former of whom died on the 10th of September, 1828. Letters testamentary on the estate of Leake were granted on the 16th of September, 1828; the question as to the validity of the will having been previously in litigation. In the spring of 1830, the executors of Leake commenced a suit at law against A. N. Lawrence, the surviving member of the firm of A. ¡H. Lawrence & Co. to recover the amount claimed to be due ta the estate of their testator; and they were afterwards obliged to file a bill in this court to obtain the discovery of a pass-book which was improperly withheld, and which was a material part of their evidence to establish the debt. In March, 1838, a judgment was recovered in the suit at law, against A. N. Lawrence, as such surviving copartner of the firm, for $85,737,59. An execution was issued upon such judgment, which was returned wholly unsatisfied, in April of the same year; the defendant in that suit having then become totally insolvent. The bill in this cause was thereupon filed against the executors of the deceased copartner, and the surviving copartner, who was one of such executors, to obtain satisfaction of the debt out of the estate of the deceased copartner.

      G. Clark & G. Griffin, for the appellants.
    The complainant is bound to prove the original demand in favor of Leake, notwithstanding the judgment at law against A. N. Lawrence, as surviving partner. There is no proof that such original demand is a subsisting debt. On the contrary, it is fairly to be presumed that it was extinguished by payment, or accord and satisfaction, during the lifetime of Leake; or else that it was presented by him to A. H. Lawrence, as a donatio causa mortis, accompanied by the symbolical delivery of the pass-book. The claim is now barred by the statute of limitations. The decree is erroneous in its direction as to the mode of calculating the interest.

      G. Wood & D. Lord, jun., for the respondents.
    Augustine H. Lawrence and Augustine N. Lawrence formed the copartnership of A. H. Lawrence & Co., and as such, were liable on the demand of Leake against them. The copartnership being proved, it results from the relation thereby created, that the creditor of the firm is entitled to establish his debt against the firm by a suit against the surviving partner, and a judgment thus obtained is evidence of the debt. The debt of Leake is fully proved against the firm by the other evidence in the cause. The debt being established, the burden of proof to show a payment or a gift is on the debtor, who must make it out by legal evidence, and in legal form. There is no such proof. The right of the complainants to proceed in equity against the estate of the deceased copartner did not arise until a judgment and an execution against the survivor had exhausted the'remedy against the partnership and its representatives at law. This was in March, 1838; certainly not until the insolvency of the survivor, which was in 1834. The bill was filed in June, 1838. But suppose that on the death of A. H. Lawrence, in September, 1828, a right arose to bring a bill in equity against' his executors, this was a mere equity and not' a concurrent remedy, with a legal remedy. The court will consider lapse of time only as an equitable bar. The pendency of the suit at law commenced in April, 1830, and the participation of the executors in the defence of that suit, prevents the lapse of time from applying as an equitable bar. The revised statutes, (2 R. S. 229, § 52,) give the only legal or equitable bar applicable to this case, and it is a period of ten years from the time the equity arose. That would allow at least until September, 1838, for the commencement of the suit, as Lawrence died in September, 1828. The bill was filed June, 1838.
   The Chancellor.

There is no doubt of the fact that this debt, if due at all, was a joint debt due from the firm of A. H. Lawrence & Co. Whatever may have been the private arrangement of the two members of the firm as between themselves, as to the persons who dealt with them they were general co-partners, and were holden as such. The counsel for the appellants are right in supposing that a judgment recovered against a ¡surviving copartner, in a suit to which the representatives of the deceased copartner were not parties, is not evidence against such' representatives of the indebtedness of the decedent; That was decided by this court in the case of Smith & Barlow v. Ballantine & McNaughton, (10 Paige’s Rep. 101.) Here, however, one of the executors of the deceased copártnef was himself the defendant in the suit at law. What effect that fact might have upon the case, it is not necessary to considéf; for; independent of the judgment, I have no doubt of the existence of the joint indebtedness of both members of the firm at the death of J. G. Leake. The other evidence in the case is perfectly satisfactory to my mind, upon that point. The assistant vice chancellor having, in his written opinion, referred to the testimony to establish the fact of indebtedness, it is not necessary for me to do more than to state the conclusion of fact at which I have arrived. The balance due to Leake, therefore, on the 13th of January, 1827, instead of being $7,407,87, as falsely carried to the new account which was undoubtedly opened after the death of Leake, was $57,407,87, and interest on $50,000 of that amount from the 1st of July, 1826, at 5 per cent.

I am satisfied that there is no error in the decree, of which the appellants have a right to complain, in relation to interest. If the false entry in the books was made, for the purpose of defrauding the estate, very soon after the death of Leake, as I think it was, that was of itself a sufficient breach of the previous agreement, to allow interest at five per cent, to entitle the executors of Leake to claim seven from that time. And certainly the debtors had no right to claim the benefit of the agreement as subsisting at the time from which the assistant vice chancellor has allowed seven per cent interest to be computed. Again; if the interest is to be computed upon the basis of the agreement of five per cent, it should be compounded; for that was undoubtedly the understanding between the parties.

The only question which remains to be considered is, whether this suit was barred by the statute of limitations. For if there is no statute which is a flat bar, the delay in commencing the suit in this court until after the determination of the action at law against the surviving copartner, is not sufficient to induce this court to refuse relief.

Had the executors of Leake neglected to pursue their remedy •at law against the surviving copartner, who was perfectly responsible when the right of action accrued, until such right of action was barred, there might be some doubt whether they ought not to.be precluded from coming into this court to obtain satisfaction out of the estate of his deceased copartner, even if the survivor had subsequently become insolvent. But that question does not arise here. For the executors of Leake commenced their action at law against A. N. Lawrence in 1830, while he was solvent and responsible, and prosecuted that action to judgment and execution. The six years’ limitation might have been applicable to the case, if there had been a concurrent remedy in this court and at law for the recovery of the debt against the copartners immediately upon the death of Leake, and such concurrent remedy had continued without interruption. But so far as relates to the $50,000, at least, the representatives of Leake could not have had a pretext for coming into this court for an account immediately upon his death; as that was a liquidated sum left with the bankers upon a special agreement and at a given rate of interest. The remedy to recover it, therefore, was at that time at law only,pnd this court had no jurisdiction which was concurrent, so as to make the six years’ limitation applicable to the suit here.

The ten years’ limitation, therefore, is the only one which is applicable to the case in this court. And if the ten years commenced running immediately .upon the death of A. H. Lawrence, in September, 1828, the bill was filed within the time allowed by law; whether the provisions of the revised statutes are or are not retroactive in their operation in cases where this court has exclusive jurisdiction.

The question whether a creditor of a copartnership firm, one member of which has died, can file a bill in this court, against the representatives of the decedent and the surviving members of the firm, for payment, without averring in his bill that such surviving members are insolvent, appears to be one in which the decisions in this country are in conflict with some recent decisions on the subject in England. The weight of authority, however, is in favor of the principle that, as the remedy at law survives, the creditor is bound to resort to his legal remedy against the surviving debtors, unless he can show some ground of necessity for coming into this court for relief against the estate of the deceased debtor. And l am not disposed to follow these recent cases in England, and to extend the jurisdiction of this court to a case to which it has never yet been extended by any adjudged case which is binding here as authority. My own opinion of the law on this subject has always been that the estate of.a deceased copartner, or joint debtor, in the hands of his personal representatives could not be reached by a suit in this court, without stating in the complainant’s bill a sufficient excuse for not proceeding at law against the surviving debtors to obtain payment; but that where the debt was joint and several the rule was otherwise. And I was not aware that any doubt existed on the question until I saw the recent decisions in the English courts to which I have before referred. The examination of the cases on this subject, and the reasons of the rule, satisfy me that my former understanding of the rule was correct.

There never was, therefore, any right of action, or of suit, against the executors of A. H. Lawrence for'the recovery of this debt, either at law or in equity, until after the failure of the surviving copartner ; which failure could not have been earlier than 1834. And as the right of action as against him has been kept alive by the commencement of a suit at law and the prosecution thereof to judgment, the remedy of the complainant in this court as against the estate of his deceased copartner,'was not barred by any act of limitation at the time this bill was filed, in June, 1838.

The answers of the defendants admit a sufficiency of assets; and there is no pretence th at any of the defendants were ignorant of the facts upon which this claim is based, previous to the commencement of this suit. There was no reason, therefore, for excusing them from the payment of the costs to which their refusal to pay the debt had subjected the adverse party. And there is no error in that part of the decree. The decree appealed from is therefore affirmed with costs; and with interest on the amount of the decree of the assistant Vice chancellor, as damages for the delay and vexation caused by the appeal.

       Affirmed upon appeal to the court for the correction of errors. (2 Denio’s Reports, 577.)


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    Lockwood and Sleight, ex’rs, &c. vs. Stockholm and others.
    Where real estate is devised, charged with the payment of a legacy, no action at law will lie against the devisee for the legacy, -unless he has promised to pay the same, or has done some act from which a promise to pay can he implied; hut if he neglects or refuses to pay the legacy the court of chancery will give the proper relief to the legatee.
    Under the provisions of the revised statutes, if the husband survives his wife and afterwards dies leaving a debt uncollected, which belonged to her at the time of her death, his personal representatives are authorized to sue for the debt without taking out letters of administration upon her estate.
    Where the husband survives his wife, her personal estate of every description, except such separate estate as she has made a valid disposition of by will, under a power for that purpose, belongs to him, under the statute of distributions. And if he intermeddles with her property without taking out letters of administration on her estate, the statute renders him liable for the payment of her debts.
    If the property of the deceased wife comes to the hands of the personal representatives of the husband who survived her, such property in their hands is liable for the debts of the wife in preference to the debts of the husband due at the time of his death.
    Where the names of the father and the son are the same, and both reside in the same place, and it is doubtful to which of them the conveyance of a farm was in fact given, and the father devises the farm to the son, charged with the payment of several legacies, the subsequent payment of some of the legacies by the devisee, without objection, is presumptive evidence that the conveyance of the farm was to the devisor, and not to the devisee.
    This was an appeal by Abraham Sleight, one of the defendants, from a decree of the vice chancellor of the second circuit. The bill was filed by the executors of W. Rider, deceased, who survived his wife, to recover the one fourth part of a legacy given to Mrs. Rider, the sister of the appellant, by the will of her father; which one fourth part of the legacy was charged upon a farm devised to the appellant by such will. The principal ground of defence set up by the appellant was, that the farm was his, and never belonged to his father, but was actually purchased and paid for by the appellant himself, and that the deed was taken in his own name.

      S. Barculo, for the appellant.

      H. Swift, for the respondent.
   The Chancellor.

Upon a full examination of all the testimony in this case, I have no doubt, that the defence set up by the appellant, that the farm never belonged to the testator, was not true in fact. In the first place, it is wholly improbable that the father, in apportioning his real estate among his four sons, would devise this farm to the appellant by such a description, if he had not himself purchased it; although I have no doubt that he actually intended, at the time of such purchase, to let the son have the use of it, and to devise it to him by his will, charged with a proper portion for the sisters. This will account for all the testimony as to the appellant being the active man in making the bargain. He was also, most probably, the agent of the father, in his lifetime, in making the payments upon the bond and mortgage. • It is not improbable also, that the appellant furnished some part of the funds, either to make the payment of one half of the purchase money at the time of the purchase, or for the first instalment on the bond and mortgage. And it was probably for that amount that the bond of the 1st of January, 1800, for if 1000 was given. The language of the will is such as to admit of no doubt. And unless the father intended to insert a wilful falsehood in his will, without any apparent reason for so doing, he must have been the purchaser of this farm from the Allgetts. He devises it by this description: “ I give, devise, and bequeath unto my son Abraham Sleight, and to his heirs and assigns forever, all that farm now in his possession, which I bought of Jacobus Allgett, Adam Allgett, John Allgett, and his two sisters.” At the time the deed from these Allgetts was given to Abraham Sleight, for the farm, in May, 1800, there were three Sleights in the town of Fishkill, bearing the Christian name of Abraham — the father, son, and grandson; the father, a man somewhat advanced in life, the son, who was married some fifteen or sixteen years before, and the grandson, then a boy but thirteen years old, as appears by the testi-xnony. The father had been a magistrate. The son lived some 12 or 13 miles from him; and was mot, as I presume, called by the addition of junior by his neighbors, who were unacquainted with the father. The grandson was too young, at that time, to need any addition, as he could not have had any business to transact requiring a suffix to his name. The only occasion, he would have to write his name, therefore, would be in his writing books; where some of the witnesses saw it written Abraham A. Sleight. It is wholly improbable that this boy was taken to the place where the papers were executed to be a witness to them. And even if the appellant was in the habit of omitting the junior to his name in transactions in his own neighborhood, it would be a matter of course to add the junior when witnessing the deed given to his father, who bore the same name; and in witnessing the mortgage executed by his father. That the father and son and grandson knew how to distinguish the one from the other, when necessary, appears by the bond executed by the father to the son, three years afterwards, and witnessed by the grandson.' In that bond the father, the obligor, is described as Abraham Sleight senior.; the son, the obligee, as Abraham Sleight junior; and the grandson, who signed it as the subscribing witness, and who was then sixteen years of age, signs his name Abraham A. Sleight.. Again, the mortgagor, in the mortgage given at the time of the execution of the deed, is described as Abraham Sleight, Esq.; which would be a proper suffix to the name of the father at that time, but not to the name of the son, who witnessed the deed and the mort- - gage, and signed his name Abraham Sleight junior. The testimony of the appellant’s son satisfies me, beyond all doubt, that his father, and not the boy who three years afterwards signs his name Abraham A. Sleight, was the person who actually witnessed these two instruments. And the fact that he so witnessed them renders it incredible that he or any other person, at that time, supposed that he was the grantee intended in the deed, or the mortgagor described in the mortgage as Abraham Sleight, Esq. of Fishkill. The parts of the name which are left, of the signatures of the obligor and mortgagor in the bond and hnort-gage, I am also satisfied, from the testimony, were not written by the appellant.

The fact that the appellant paid his fourth of the legacies to his sister, Mrs. Cook, and to his niece, Mrs. Huger, yhich legacies were also charged on the farm thus devised to him, is wholly inconsistent with the supposition that the farm was conveyed to himself originally, and that the appellant received nothing under the will of his father. These witnesses, too, so contradict some of the material parts of the appellant’s answer, as to discredit such answer; so that no reliance'can be placed upon any part of it, as evidence in the appellant’s favor. It appears also, by the documentary evidence, that the appellant claimed and received from his brothers only their several proportional parts of the bond of £400 to himself and of the bond due from the decedent to Yan Wyck. This is also inconsistent with the idea that he received nothing under the will. For if that were so, he would not have been likely to pay the one fourth part of the debts himself, instead of leaving the devisees of the testator’s estate to pay them. And from the testimony, I infer that he was not a man of such unbounded liberality as to volunteer to pay one fourth of his father’s debts and legacies when he believed he was under no legal or equitable obligation to do so.

The statute of limitations was no bar. The legatee was a feme covert when the legacy became due and payable, four years after the death of the testator; and of course the remedy was not barred as to her at the time of her death, in December, 1826, even if an action at law could have been sustained for this legacy without any promise to pay it. The defendant swears that he never did agree to pay any part Of the legacy, and that he never paid the interest thereon. If so, there never was a remedy at law. The testimony, however, shows pretty satisfactorily, that he not only agreed to pay the interest to his sister, but that he did pay some part of it at least. It is, however, doubtful whether he ever agreed to pay the principal, to her or to her husband. Although the law may not raise an implied promise to pay, in such a case, so as to enable the legatee to bring an action, yet if this cohrt is satisfied that the legacy is still due, it must give the proper relief to the legatee. The proof shows that both before and after the death of Mrs.-Rider, the appellant admitted that this legacy was unpaid. Neither the six years’ limitation previous to the 1st of January, 1830, as set up in the answer, nor the ten years’ limitation previous to the filing of the complainants’ bill, could therefore avail the appellant in this suit. *

Nor is the objection that the complainants have not sued out administration de bonis non on the estate of the wife of their testator, as the legatee, a valid objection to this suit. Previous to the revised statutes the husband could not have sustained a suit for a legacy, or debt, due to his deceased wife before coverture, without administering upon her estate; nor could his representatives maintain such a suit, after his death, without suing out letters of administration de bonis non on her estate. But in the recent case of Rosevelt, adm'r, v. Ellithorp and others, (10 Paige's Rep. 415,) I came to the conclusion that where the husband survived the wife and afterwards died, the revised statutes authorized his personal representatives to sue for a debt due to his estate on account of, or in right of his deceased wife, without administering on her estate also.

The personal property of the wife, of every description, except her separate estate which she makes a valid disposition of by will under a power of appointment, belongs to the husband un-' der the statute of distributions, where he survives her. And the only object in requiring letters of administration on her estate is to have some responsible person who may be answerable to her creditors, if there should be any. If the husband inter-meddles with the deceased wife’s estate, without taking out letters of administration, the revised statutes make him liable for her debts; upon the presumption that he has assets belonging to her estate to pay them. But if the husband survives the wife and dies, either before or after taking out letters of administration on her estate, leaving any assets of his wife unadministered, the statute directs that they shall pass to his executors or administrators, but shall be liable for her debts to her creditors in preference to the creditors of the husband.” (2 R. S. 75, § 29.) If the only object of this provision was that the property of the wife, which unquestionably belonged to the representatives of her husband, who had survived her, should go to the representatives of the husband after paying her debts, provided they, or some other person, administered on her estate specially, the last clause giving her creditors a preference is wholly senseless. And I have no doubt that the legislature intended, in such a case, that the personal representatives of the surviving husband, in their character of such representatives, should acquire the right to her whole property unadministered, and should have power to sue for and recover it as such representatives of the surviving husband. But after the assets have been recovered by them they must so administer them as to give her creditors a preference in payment out of that part of the estate; although it comes to them in the character of the personal representatives of the husband. There were two questions of some doubt existing before the revised statutes : 1st. Whether the assets of the wife were liable for her debts, where her husband survived her, or were to belong absolutely to the husband’s representatives, as a part of his personal estate ; 2d. Whether his representatives', or the next of kin of the wife; were to administer on her estate. And both questions were put at rest by giving the property directly to his representatives, as a part of his personal estate; but chargeable in their hands with her debts, to'the extent of that part of the fund. The representatives of the surviving husband, therefore, are the proper persons to sue for and collect debts or legacies, <fcc. due to the wife at the time of her decease; and they and their sureties are answerable to her creditors for the application of the fund according to this section of the statute.

The decree appealed from must be affirmed, with costs.


text:
    Young and others vs. Beardsley, Agent of the Auburn State Prison.
    The act of 1842, in relation to the employment of convicts in the state prisons, did not authorize the agents of the state to annul contracts previously entered into, in conformity to the law as it then existed, without the consent of the other per-ties to such contracts.
    It is not competent for the legislature, by a retroactive statute, to make the opinion of the attorney general, that a contract between the state and an individual in relation to convict labor was illegal, conclusive evidence of such illegality as against the latter.
    But if the contract was in fact illegal, or if it was originally valid, the contractors had violated it, so as to authorize the state to rescind it, but the inspectors of the prison were, under the act of 1842, bound to act upon the opinion of the attorney general, and to rescind the contract.
    Where valuable services have been performed by one party for another under a contract originally illegal and unauthorized, and the party who has received the benefit of such services afterwards gives a judgment to the other party to secure the payment of the amount equitably due therefor, the court of chancery will not interfere to relieve the defendant in the judgment from the payment of the same, although the adverse party might not have been able to recover upon the original contract, on account of its illegality.
    This was an application for an injunction to restrain the defendant from collecting a judgment given for state prison labor, and to restrain the collection of certain notes given as collateral security for the same debt, and also to restrain a suit against the complainants and their sureties for other labor performed under a contract made by them with a former agent of the prison. On the 1st of September, 1839, a contract was made between the agent of the prison, of the one part, and the complainants J. Young and A. D. McMaster, as principals, and W. Taber and H. Young as their sureties, of the other part, for the labor and services of not less than thirty-five, nor more than forty, convicts, suitable to be employed at plane and tool making, for the term of five years from that date. And the contractors were to pay fbr the services of each convict thirty-seven and a half cents per day, payable monthly, the payments to commence on the expiraton of three months’ credit given on the amount of the first month’s earnings. Under this contract the contractors commenced the employment of the convicts in the plane and too] making business, which was the making of articles of which the chief supply for the consumption of this country was not obtained by foreign importations, but by domestic manufacture. And the employment of the convicts was continued under the contract, until the first day of May, 1843, when the contract was rescinded without the consent of the contractors; the attorney general having, previous to that time, certified to the inspectors of the prison that the contract was, in his opinion, illegal and in violation of the laws of the state. The contractors continued to pay for the labor of the convicts until their contract was submitted to the attorney general pursuant to the directions of the act of April, 1842, in relation to convict labor in the state prisons; after which time they refused to pay although they continued to employ the convicts. On the 21st of February, 1843, there was due to the agent of the prison, for the labor of convicts, which had been performed in 1842, and on which the three mouths’ credit had expired, the sum of $3521,84. For this amount the contractors gave a judgment to the agent of the prison. They also executed their five promissory notes therefor, payable to the order of W. Taber, one of their sureties in the contract; which were endorsed by him to the agent. These notes were made payable at different periods, and were afterwards protested for non-payment. And only $500 was paid upo.n such notes and judgment. Subsequent to the giving of these notes and the judgment, other sums became due and payable for labor, on which the three months’ credit elapsed, on the last days of Febrüary, March, and April, 1843; and which sums were not paid when they became due according to the terms of the contract, and still remained unpaid. In February, 1844, the agent caused an execution to be issued upon the judgment, to collect the balance due thereon. He also brought a suit upon the notes against the endorser, and another suit against the contractors and their sureties, to recover for the services of the convicts not included in the notes and judgment.

      W. H. Seward, for the complainants.

      Julius Rhoades, for the defendant.
   The Chancellor.

I see no reason to change the opinion heretofore expressed, that this is not a proper case to dispense with the payment of the amount of the judgment into court as a condition of the granting of an injunction; even if there was sufficient equity in the bill to entitle the defendants in the judgment to an injunction. There certainly was no fraud on the part of the former agent in obtaining the judgment. For the facts upon which the question of the legality of the contract depended were as well known to the contractors as to him. And he told them truly, that if they did not pay or secure to his satisfaction the amount then due, he would have the right to rescind the contract for a noncompliance with its terms on their part; even if it ivas legal. Having themselves violated the contract, and having given these securities for the labor which had been actually performed, to enable them to retain the benefit of the contract for the time which was yet to elapse if it should eventually be decided that the contract was legal and valid, they have ño ground whatever which can justify a court of equity in setting aside those securities even if the contract was in fact illegal. For if the parties have, from a mistake of the law or the facts of the case, made an illegal contract, upon which neither of them could have sustained a suit, a subsequent agreement to pay for the services of the convicts which had been actually performed, may still be a legal and equitable agreement.

So far as the bill seeks to restrain the suit upon the contract to recover for services of the convicts subsequent to the judgment, the complainants’ remedy, if any, is at law, if the contract is illegal. And if it is not illegal, they have no defence any where; for the contractors had themselves violated the contract, by neglecting to pay for the services of the convicts the amounts which became due from time to time, subsequent to the giving of the judgment. That of itself was a sufficient ground for rescinding the contract, even if the certificate of the attorney general did not authorize the inspectors to terminate it on the ground of its illegality. And the contractors having violated the contract on their part, by neglecting to pay for the convict labor already performed, according to its terms, they have no legal or equitable claim for damages for not being permitted to have the labor of the convicts subsequen tly. In this view of the case, it is perhaps unnecessary that I should express any opinion upon the construction of the act of May, 1835, in relation to the state prisons, in reference to the legality of this contract. But as that question was fully argued by the counsel, and it may save further litigation in this court, it. may not be improper to express my views upon that subject.

The legislature appears to have had two objects in view, in the adoption of the 7th, 8th and 9th sections of the act of May, 1835; First, to prevent the employment of convicts in those trades in which the mechanics of this country were engaged, except so far as the convicts had already been instructed in such trades; and Secondly, to regulate the making of contracts so as to produce a fair competition. The 7th and 8th sections are confined to the fil'st object exclusively; but the 9th section appears to have been intended to embrace both. The 7th section accordingly provided that no mechanical trade should thereafter be taught to convicts, except the making of those articles of which the chief supply for the consumption of the country was imported from foreign countries. And the 8th section authorized the inspectors to employ artizans from abroad to instruct the convicts in,new trades not pursued in this state. The 9th section, after requiring the consent of the inspectors to contracts for the services of convicts for a longer period than six months, directs two months’ notice of the time and place for letting such contracts ; which notice is to specify the particular branches of business in which the convicts are to be employed, the length of time, not exceeding five years, for which their services are to be let, and the number of convicts to .which the contractors are to be limited: that is, as I understand the language of this section, the greatest number to whose services the contractor, shall be entitled under his contract, at any time during its continuance. The last clause of this 9th section then provides that in all those branches of business by which the consumption of the country is chiefly supplied without foreign importation, the number of convicts to be employed or let shall be limited by the number of convicts who had learned a trade before coming to prison.

The limitation in this last clause of the 9th section was intended to refer to a limitation to be inserted in the contract. And it cannot be presumed that it was intended to apply to the number of convicts at the time of making the contract, who had learned the trade before coming to prison. For as the contract might continue five years, there could be no certainty that the number who had previously learned the trade would remain the same, or as large as it then was, during the five years. And as new convicts could not be instructed in such trade, if the contract was not limited so as not to exceed the number in prison from time to time, who had learned the trade before coming there, it would be impossible for the agent to fulfil the contract without violating the law; in case the number of convicts who had learned the particular trade should be reduced, by the expiration of sentences, or otherwise. Although the indefinite article is used in the last clause of this 9th section, it is obvious that the legislature must have intended that the contract for the services of convicts employed in domestic manufactures, should be limited by the number who had learned the particular trade to which such contract related, and not by the number who had learned any trade whatever previous to their imprisonment.

In this contract there is an absolute agreement, by the agent, for the services of not less than thirty-five convicts to be employed in a branch of business of which the cljief supply of the country was from home manufactures; and without making any limitation or provision for the employment of a less number, if there should not be a sufficient number in prison from time to time, who had learned the trade of plane and tool making, to amount to the minimum of thirty-five specified in such contract. The act of 1842, could not render this contract illegal, if it was a substantial compliance with the law as the same existed when such contract uras made. Nor does that act authorize the violation of any contract previously made. For the 4th section, in terms, declared that nothing in that act contained should prevent the employment of convicts at any mechanical trade, in the state prisons, so far as might be necessary to fulfil the obligations of the state in such existing contracts as had been lawfully made for convict labor. Nor was it competent for the legislature to make the opinion of the attorney general, that contracts previously made were illegal, conclusive against the contractors. But if the contract was in fact illegal, and that was also the opinion of the attorney general, the inspectors were bound to rescind the contract. And especially were they bound to act upon the opinion of the attorney general that the contract was illegal, and to rescind it, whatever might be their own opinions upon the subject, if, as in this case, the contractors themselves had violated the contract by neglecting to comply with its terms on their part; so as to authorize the agent and inspectors to rescind it without reference to its illegality.

From the facts of the case, as they now appear, the complainants do not seem to have any equitable claim to damages for a breach of the contract on the part of the officers of the prison, whether it was or was not a valid contract in its inception, after having neglected to comply with the contract by paying for the labor which had been performed for more than three months previous to the 1st of May, 1843. The taking of the notes and judgment, and the extension of the credit for the amount liquidated in February of that year, was probably a waiver, by the agent, of the violation of the contract by the contractors previous to that time. But there is nothing in the case to show that the agent, or the inspectors of the prison, ever agreed to extend the time of the payments which subsequently fell due on the last days of February, March and April.

The application for an injunction must therefore be denied, with costs.