text:
    Chapin vs. Powers.
    Where the Holland Land Company contracted for the sale of 190 acres of land, provided the same was paid for in the manner specified in the contract, and a mere nominal sum was paid in advance, and the purchaser afterwards assigned his interest in twelve acres of the land to the complainant and in the residue thereof to the defendant, and the company subse. quently gave notice to the holders of such contracts who had not made the payments as prescribed therein that they must either take out new contracts or pay the purchase money, or that the land would be sold to others, and the defendant applied to the complainant to join with him in taking out a new contract or to pay up the purchase money for his portion of the land so as to enable the defendant to obtain a new contract for his share, but the complainant positively refused to do either, whereby the defendant was compelled to take out a new contract for the whole 190 acres; Held, that the complainant was not entitled to the benefit of the new contract, and that if he had any equitable claim to the twelve acres his remedy was by a bill for the specific performance of the original contract, as to the twelve acres, against the company and the holder of the subsequent agreement.
    This was an appeal by the defendant from a decree of the vice chancellor of the eighth circuit. It appeared that the complainant was the assignee of twelve acres of land included in a contract with the Holland Land Company for a lot of 190 acres, and that the defendant was the assignee of the residue of the lot. The contract was made in 1816, for the sale of the whole lot for a little short of $900; of which sum $1 was paid down, and the residue was to be paid in six yearly payments, with annual interest. There was also a stipulation in the contract that the agreement of the company to convey should be void and of no effect, if the several instalments were not punctually paid. In the summer of 1827, nothing having been paid on this contract except the one dollar paid at the time of taking it out, the company gave public notice to all persons holding articles, the time for the payments upon which had expired, that unless they renewed their articles within a specified period the company would resell their lots to the first applicants. The defendant thereupon, for the purpose of saving his part of the lot, applied to the agent of the company and ascertained the terms upon which a new article for the lot could be obtained. He then called upon the complainant, as he had frequently before done, and desired him, if he had any interest in the twelve acres under the old contract, to go with him to the land office, and advance his proportion of the money required to be paid upon taking out the new article. But the complainant wholly declined and refused doing any thing in relation thereto, and said he would not pay a dollar towards obtaining a new article for the premises. The defendant then applied to the company for a new article for his part of the lot, excluding the twelve acres therefrom ; but the agent refused to give him a contract unless he took one including the whole. He therefore was compelled, for the purpose of saving his 178 acres, to take a new contract for the whole 190. This contract was executed the 17th of April, 1828; the defendant having previously advanced to the agent $45, to be applied towards the same. Upon the execution of the contract he paid $110 more, and covenanted to pay the further sum of $748 in six yearly payments, with annual interest; upon the payment of which sum and interest the defendant was to have a deed. One of the conditions of this new article was that the defendant, until the payment of the whole sum agreed to be paid, with interest, should not assign or transfer his interest in the land, or any part thereof, nor assign or make over the article, or any interest therein, to any person whatever, without the written consent of the Holland Land Company or their assigns. About three years afterwards the complainant’s agent called upon the defendant to assign to him the twelve acres, and offered to pay a proportional part of the monies advanced; but he made no offer to pay to the defendant what he was still liable to pay to the company under the new contract, or to procure the consent of the company to an assignment of his interest in the twelve acres. The vice chancellor decreed that upon the payment by the complainant of the sums advanced by the defendant in part payment of the purchase money of the twelve acres, and interest, the defendant should forthwith execute to him, under seal, an assignment of all the defendant’s title and interest, legal and equitable, in or to the twelve acres by virtue of the new article.

      March 6.

      E. Ford, for the appellant.
    S. Caldwell, for the respondent.
   The Chancellor.

The facts in this case are principally derived from the defendant’s answer, which as to everything material is strictly responsive to the bill; and the answer is corroborated by the complainant’s proofs, so far as he has attempted to prove any thing stated in the bill. Under the circumstances disclosed, even if the complainant was technically entitled to any relief in the present suit, I think he should have been compelled to pay the defendant’s costs. The decree is also clearly wrong in not requiring Chapin to pay or secure a rateable proportion of the whole purchase money of the lot, which the defendant had paid, or which he should hereafter be compelled to pay, under the new contract. Neither should the defendant be compelled to execute any assignment of the twelve acres until Chapin procures the written consent of the company, or until the whole purchase money and interest was paid.

I am satisfied, however, that no decree whatever should have been made in favor of Chapin in this cause, but on the contrary that the bill should have been dismissed with costs. The new article was not taken for the benefit of or in trust for Chapin as to the twelve acres. But it was taken for the benefit of the defendant for the whole lot, because the complainant had most unconscientiously and inequitably refused to pay his proportion of the purchase money or to join the defendant in obtaining a new article; by which the defendant was compelled to make the best bargain he could with the company, for the whole lot, on his own account solely. The rights of the complainant, if they were not entirely waived and abandoned by him, are therefore under the old contract and not under the new one. If he could have filed a bill for a specific performance of the old contract, so far as related to his interest in the twelve acres, his right is not gone by any arrangement the company has made with the defendant; as their agent, at the time the new contract was given, was aware of the complainant’s rights, if he had any, under the old one. He should therefore have filed his bill against the company and the defendant, to enforce his rights under the old contract, instead of attempting to take advantage of the more favorable terms of the new agreement, of which he has no legal or equitable right to claim the benefit. His proportional part of the purchase money under the old contract, for principal and interest due in April, 1828, would have been about $100, which is nearly double what is payable under the new one which he refused to join in obtaining. The visits of the complainant’s attornies to the defendant were evidently mere fishing visits, for the purpose of getting materials for the commencement of a suit in chancery in relation to the land; and nothing transpired at those visits which can give the complainant any equitable claim under the new contract.

The decree of the vice chancellor must therefore be reversed with costs. And the complainant’s bill must be dismissed with costs to the defendant, but without prejudice, however, to the complainant’s rights, if he has any, to file a new bill against the Holland Land Company and the defendant, after he has paid the costs in this suit, to enforce any claim he may think proper to set up to the twelve acres, under the original contract of 1816. The respondent having died since the argument of this cause upon the appeal, the decree of reversal must be entered nunc pro tunc, as of the time when the cause was heard upon the appeal.


source: Caselaw Access Project

author: The Chancellor

license: Public Domain

text:
    Leggett vs. Hopkins & Smith.
    Where a creditor recovered a judgment against his debtor in the New-York common pleas, and caused an execution to be issued thereon to the county of New-York which was returned unsatisfied, it was held that such credit- or could file a creditor’s bill upon that judgment, without bringing a new suit in a court which had jurisdiction to issue an execution in the county, where the debtor resided and where it appeared he had property more than sufficient to pay the debt.
    The remedy of the defendant in such a case, if he wishes to save the ex-pence of a suit in the court of chancery, upon a creditor’s bill, is to sell his property and pay off the judgment.
    This was an application by the defendants to dissolve an injunction issued upon the filing of a creditor’s bill, in the usual form. The defendants were abundantly able to pay the debt for which they were sued, they having a large amount of property in the western part of this state, where they resided. Being in the city of New-York they were sued there in the court of common pleas, and a judgment was recovered against them. An execution was afterwards issued upon that judgment, and the defendants having no property within the jurisdiction of the court, the execution was returned by the sheriff unsatisfied. The defendants having neglected to pay the judgment, the bill in this cause was filed and an injunction was granted thereon. The defendants insisted that the complainant had no right to file the bill upon the return of the execution in the city of New-York ; but that he was bound to bring his suit in a court which had jurisdiction to issue an execution to the county where they had property, so as to exhaust his remedy against such property there.
    March 20.

      S. Stevens, for the complainant.

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

decided that the complainant, after having recovered one judgment in a court of record in this state, and having an execution upon that judgment issued to the proper county and returned unsatisfied, was not bound to bring another suit upon the judgment in the county where the property of the defendants was situated, or where they resided, before he was authorized to proceed against them in this court; that as the debt was justly due, it was the duty of the defendants to pay it without suit; that if they had a very large property, as it appeared from their answer they had, they should have converted some part of that property into money and paid the debt after it was reduced to judgment, without subjecting the complainant to the expense or delay of any further litigation; and that as the complainant had done all that was necessary to comply with the requisition of the statute, by issuing his execution to the county where the suit was instituted, which was the only one to which it could be legally sent upon that judgment, the bill in this cause was properly filed, and the complainant was entitled to retain his injunction until his debt and costs were paid.


text:
    Phelps vs. Phelps.
    The personal service of a subpcena upon a defendant who is confined in the state prison for a term of years is regular; and the court will not set aside or open a decree by default obtained upon such service, unless it appears that the defendant by reason of his situation was deprived of a legal and meritorious defence.
    March 20.
    This was an appeal from a decision of a vice chancellor refusing to vacate a decree obtained against the defendant by default. It appeared that the defendant was sentenced to imprisonment in the state prison at Auburn, for felony, for a term of years; that while he was so imprisoned his wife filed her bill against him for adultery, and upon a personal service of the subpcena obtained a decree by default for a divorce. After his release from prison, he applied to set aside the default and open the decree, alleging among other things that his wife was willing to live with him and had been induced to apply for a divorce by the persuasion of her friends. The complainant contradicted this part of the affidavit upon which the application was founded.

      M. T. Reynolds, for the appellant.

      J. V. L. Pruyn, for the respondent.
   The Chancellor

decided that the service of the subpoena was regular; and that as it was not pretended by the defendant that he had a legal and meritorious defence to the suit of which he had been deprived in consequence of his situation, the vice chancellor was right in refusing to open the default and to vacate the decree.


author: The Chancellor.

text:
    Merritt vs. Annan and others.
    Where a party neglects to attend before a master and do some act, pursuant to the directions of a decree or order of the court, the" adverse party, upon the production of the decree or order and the master’s certificate of the default, may apply ex parte for an order, requiring the party in default to attend before the master and do the act required, within four days after service of a copy of the order upon his solicitor, or within such other time as shall be allowed by the court for that purpose, and to pay the costs of the application ; or in default thereof that he show cause, upon some regular motion day, why an attachment should not issue against him.
    Where the aggrieved party would be injured by the delay, he may, upon due notice to the adverse party or his solicitor, apply at once for an absolute order, that such party attend before the master and do the act required, within the time allowed by the court, or that an attachment issue against him, upon filing the master’s certificate of a second default. But in such case the aggrieved party will not be allowed the extra costs of that proceeding, unless sufficient reasons are shown for the same.
    The service of a summons to bring a party into contempt, for a neglect to attend before the master to do some act required by a decretal order in a suit, need not be personal. It is sufficient if served on the solicitor of the party, where he appears by a solicitor.
    This was an appeal from the decision of a vice chancellor, upon an application to compel the defendants to attend before a master and execute a conveyance, pursuant to the directions of the decree in the cause. The defendants Mead and Annan were by the decree directed to execute a conveyance of a lot of land to the complainant, by a deed to be approved of by the master, and to be executed in his presence and under his direction. Both of these defendants having appeared in the cause by a solicitor, the master’s summons was served on such solicitor, and also on Mead, one of the defendants, personally; duly underwritten, to settle and approve the conveyance, and for the defendants to attend before the master and execute such conveyance. Neither the parties nor their solicitor attended upon the return of the summons; and the master having proceeded and settled the form of the conveyance ex parte, certified the default of the defendants in not attending and executing the same. Whereupon the complainant’s solicitor applied for an attachment against both defendants, and gave notice of the application to their solicitor. The vice chancellor granted the application as to the defendant Mead, but denied it with costs as to the defendant Annan, on the ground that a service of the master’s summons on the defendant in person was requisite in such a case, and that the service upon his solicitor was not sufficient. From the decision of the vice chancellor, as to the defendant Annan, the complainant appealed.

      April 3.

      W. Silliman, for the appellant.

      J. Rhoades, for the respondent.
   The Chancellor.

The vice chancellor erred in supposing that a personal service of the summons upon the defendant was necessary in this case. By the English practice there is a certain class of cases in which a personal service or actual notice of an order of the courtis necessary, to bring a party into contempt for a disobedience of such order. Whether the revised statutes, which require the pleadings and proceedings to be served on the solicitor in the cause, where the party has appeared by a solicitor, (2 R. S. 180, § 77, 83,) has not altered the practice in this respect, is a question which it is not necessary to consider here ; as this is a case in which a personal service was not necessary by the English practice. Even before the adoption of this statutory provision on the subject of the service of papers, the practice in this state was, in many cases, to serve the papers upon the solicitor in the cause, instead of the clerk in court of the party for whom he appeared. And the effect of the statute undoubtedly was to make a service upon the solicitor a good service in all those cases, where by the former practice a service upon the clerk in court was requisite or proper. The 16th rule has also provided for a class of cases in which the party has appeared in person in the cause, or where he has neglected to appear at all.

By the practice of the English court of chancery, the service of a summons to attend before a master, in pursuance of a decree or order of the court, to be examined or to produce books and papers or to execute conveyances, or to do any other act in the usual course of ptoceedings in the master’s office, might be served upon the clerk in court of a party who had appeared in the suit; even where the effect of such summons might be to bring the party into contempt if he neglected to attend the master thereon. (Bennett's Off. of Master, 7, App. 31. 1 Newl. Ch. Pr. 515, 3d Lond. ed.) And if the party neglected to attend before the master and to do the act required, the master upon such a service of the summons upon the clerk in court certified his default; on which certificate an ex parte order was obtained, which resulted in an arrest of the party for contempt if the order was not obeyed within four days after a service thereof upon his clerk in court. (Benn. Off. of Mast. App. 31, No. 15.) The practice in this court is substantially the same, except as to the sendee of the summons and the subsequent papers upon the solicitor instead of the clerk in court; and in giving to the party an opportunity to show cause why an attachment should not issue, where the order to attend before the master and do the act required by the previous summons is obtained on an ex parte application to the court, upon the master’s certificate.

By the practice in this state, the party aggrieved by the neglect of the adverse party to attend before the master and do the act required, may upon production of the decree or order of reference and the master’s certificate of the default in the usual form, apply to the court ex parte for an order, that the party so in default attend before the master and do the act required, within four days after the service of the copy of the order upon his solicitor, or within such further time as shall be allowed by the court and specified in the order for that purpose, and pay the costs of the application, or in default thereof that he show cause before the court upon some regular motion day thereafter, to be specified in the order, why an attachment should not be issued against him. Where. the party proceeded against is not a solicitor of the court, and has appeared in person, the order will be varied accordingly, so as to direct the same to be served in the manner prescribed by the 16th rule. And where the party has not appeared, the court must prescribe what notice of the order, if any, shall be given to him.

It is not absolutely necessary, however, in all cases, that the party aggrieved should apply and obtain this preliminary order in the first instance. And where he has actually sustained damage by the neglect of the adverse party to attend before the master and do the act required in the first instance, or where he would be likely to be injured by the delay, upon an order to show cause, he may," upon due notice to the adverse party or his solicitor, apply for an absolute order that such party attend before the master and do the act required, within such time as may be allowed by the court for that purpose, or that an attachment issue against him upon filing the master’s certificate of a second default, and for such other relief in the premises as to the court may seem proper. In such a case, however, he will not be allowed the extra costs of that proceeding, unless there is some sufficient reason shown for departing from the usual course of an ex parte application. And he may even be compelled to pay costs, in the discretion of the court, if he compels the adverse party to appear and resist the application by asking for relief to which he is not entitled.

In this case the vice chancellor, instead of denying any relief as against the defendant Annan, should have made an order that he attend before the master, within a reasonable time after the service of such order on his solicitor, and execute the conveyance which had been approved by the master, or that an attachment issue upon filing with the clerk the master’s certificate of such second default. And as the complainant in his application had asked for an attachment in the first instance, which he was not entitled to, it would have been proper to have refused him costs upon the application. The order of the vice chancellor must therefore be reversed and modified accordingly, without costs to either party, either in the court below or on this appeal, giving to the defendant Annan eight days after service of a copy of the order on his solicitor, to appear and execute the deed. And the proceedings are to be remitted to the vice chancellor, to carry into effect the order as thus modified.


text:
    Huyler vs. Westervelt and others.
    The court of chancery has no jurisdiction to stay the proceedings of the trastees of the property of an absconding, concealed or non-resident debtor; the debtor must resort to the remedies provided by the revised statutes.
    Wheth'T, one partner, who has been proceeded against by his co-partner as an absconding debtor, under the provisions of the revised statutes, can after the appointment of trustees file a bill for the settlement of the co-partnership concerns; qumre ?
    This was an application for an injunction to restrain the prosecuting creditor, and the trustees of the complainant, as a non-resident debtor,, from proceeding under the attachment against the complainant’s property and effects. From the bill it appeared that the alleged indebtedness, upon which the prosecuting creditor sued out his attachment against the complainant as a non-resident debtor, arose out of unsettled partnership dealings between the parties, as to which the prosecuting creditor had refused to render any account, or to come to a settlement with the complainant. The bill alleged that the prosecuting creditor was indebted to the complainant, upon a fair settlement of such account; but by reason of the complainant’s non-residence he had been unable to procure the requisite security for the discharge of the attachment. The complainant also alleged that he had offered to submit the settlement of their copartnership accounts to arbitrators, and to pay to the prosecuting creditor any balance that might be found due ; but that the latter declined to make any arrangement for an equitable settlement of the account, and that he had proceeded and procured his brother and two other persons to be appointed trustees of the complainant’s property and effects.

      April 3.

      T. W. Tucker, for the complainant.
   The Chancellor.

Upon a careful examination of the statutory 'provisions on the subject of proceedings against the property of absent and non-resident debtors, I am satisfied that this court has no jurisdiction to interfere in this case, to stay the proceedings of the trustees as to the complainant’s property. The remedy given by the statute, where the claim of the prosecuting creditor is false and unfounded, is to apply to the officer by whom the attachment was granted to discharge the same, upon security to pay the amount, if any, which may be afterwards ascertained to be due. And the fact that the non-resident or absent debtor is unable to give the security required by the statute, cannot authorize this court to stay the proceedings upon the attachment without security. Athough this court has original jurisdiction in matters of account, it is at least doubtful whether the complainant can proceed by bill here, for a settlement of the account between him and his former copartner, after the actual appointment of trustees. By the express provisions of the statute the trustees, upon taking the oath of office as such . trustees, are vested with all the real and personal property of the person proceeded against, as an absent or, nonresident debtor, in this state, for the benefit not only of the prosecuting creditor but of all other creditors of the absentee. The trustees have the right to sue in their own names for the recovery of any demand due to the absent debtor, whether the same be due.from the person who sued out the attachment or any other person. And they are authorized to settle all matters and accounts between the absentee and his debtors, or creditors. (2 R. S. 42, § 7, sub. 1, 7.) As the trustees are bound to protect the rights of the absentee as well as those of the supposed creditors, it was undoubtedly improper to appoint the brother of the prosecuting creditor a trustee, to settle this disputed claim between the absentee and one so nearly related to the trustee. This perhaps may be considered a sufficient cause for the removal of that trustee, upon an application to the supreme court; or for an application to that court, by the debtor, for an order directing the trustees to refer the settlement of the accounts to arbitrators who are indifferent between the parties. The article of the revised statutes relative to the powers, duties and obligations of trustees and assignees, (2 R. S. 40,) has given ample powers to the trustees to protect the rights of both parties; and as the complainant has the power to compel them to do their duty in this respect, by a summary application to the supreme court, there appears to be no necessity for the interference of the court of chancery.

The application for an injunction must therefore be denied.


text:
    Campbell vs. Morrison.
    The complainant is not entitled to an injunction ex parte, upon a bill verified by his own oath only, where the facts upon which the injunction rests are not within his own knowledge. In such a case he should state the facts in his bill as upon his information and belief, and annex the affidavit of the person from whom he obtained the information, or of some other person who can swear positively to the truth of the material allegations in the bill.
    Where such affidavits cannot be procured, the complainant, upon showing a sufficient excuse in the bill, will be entitled to an order to show cause why an injunction should not be granted. And upon a bill thus framed and verified by the complainant’s oath as to his information and belief, the injunction master may allow a temporary injunction, when necessary, until the time for showing cause arrives.
    If an ex parte injunction is granted, upon a bill which is not duly verified so as to authorize the issuing of such injunction, it is a matter of course to ' dissolve the injunction upon the matter of the bill only, according to the provisions of the. 34th rule.

      Where a judgment had been recovered upon a note, alleged to be usurious, previous to the act of 1837 for the prevention of usury; Held that the party against whom the judgment was recovered could not come into the court of chancery for discovery, and relief against the judgment, without offering to pay the money actually lent, and legal interest thereon.
    It must be a very special case which will authorize the court of chancery to interfere to relieve a party, against whom a judgment has been recovered, who had a perfect defence at law of which he neglected to avail himself there.
    April 3.
    This was an appeal from a decision of the vice chancellor of the eighth circuit, dissolving an injunction. The complainant was the accommodation endorser of a note, made by D. S. & J. Cole, upon which a judgment had been obtained at law, in favor of Morrison, the defendant here, as the holder of the note. The complainant stated in his bill that, as he was informed and believed, the note was received by the defendant, from the drawers thereof, upon an usurious discount of four per cent a month for the six months the note had to run, and that $30 was also retained by the defendant, which was to be applied on the note as a payment; so that only $110 was advanced by him on the note of $180. The bill also alleged that the complainant was ignorant of the defence of usury, or of any other defence to the note, until after an inquest by default had been taken in the suit at law ; although the drawers had employed an attorney to defend the suit for him and them for the purpose of delay.
    A. Sampson, for the complainant.
    The bill shows that the complainant, in fact, did not interpose any defence, because he was ignorant that he had any, until after the judgment was obtained. Although a judgment, at law, has been obtained, the complainant is not too late to apply to this court for relief. Although, as a general rule, if a party against whom an action is brought has a legal defence he must avail himself of it in the suit at law, yet in cases of this kind this court will accept of a satisfactory excuse for not resorting to a bill in the first instance, and may grant relief after judgment has been obtained in the suit at law. (Norton v. Woods, 5 Paige's Rep. 249. Lansing v. Eddy, 1 John. Ch. Rep. 49. Williams v. Lee, 3 Atk. Rep. 223. Duncan v. Lyon, 3 John. Ch. Rep. 356.) Under the circumstances of this ease notice to the attorney was not notice to the complainant. And the court often relieves the party against the consequences even of the neglect of his attorney. (Phillips v. Hawley, 6 John. Rep. 129.) It was not necessary, in this case, for the complainant either to pay or deposite the principal sum, or interest, as a condition of obtaining relief against the judgment. (Laws of 1837, p. 487, § 4.) The note in this case was absolutely void, as well by the revised statutes as by the act above cited to prevent usury.

      I. R. Elwood, for the defendant.
    The complainant ought to have paid or offered to pay the money actually loaned; and he should have stated that he had no belief or suspicion, and that he had no reason to believe that there was a defence upon the merits. Chancery never relieves against a judgment of another court, except where the defence could not be received as a defence at law ; or where the party was prevented from making it by fraud, accident, or the act of the opposite party; or where the party was ignorant of the defence. It is only under the last head that the complainant can claim any thing here. And what is meant by ignorance l Certainly not voluntary ignorance, nor want of actual personal knowledge, nor want of actual personal information. The circumstances here, if not equivalent to actual information, were abundant to put the complainant upon inquiry. If he had suspicions, and slept upon his rights, this court will not interpose. The complainant does not show due diligence in ascertaining if there was a defence to the suit. He is concluded by the acts of the attorney, who appeared for all the defendants in the suit at law. The attorney, by his stipulation, expressly assented to the judgment. It is therefore the act of the complainant himself, and he must be concluded by it. The note being joint, and the suit being brought against them jointly, the knowledge and act of either in the transaction itself is the knowledge and act of the others. Joint obligors are in legal intendment but one person. They are, pro hac vice, partners. Notice to one is notice to both, as in case of joint endorsers. So far as third persons are concerned, the knowledge of a fact brought home to one is sufficient to charge the whole. The supreme court will not, in the exercise of its equity powers, set aside a verdict or judgment regularly obtained to let in an unconscionable defence. (See Utica Ins. Co. v. Scott, 6 Cowen’s Rep. 606.) The relief sought by this bill is within the powers of the supreme court daily exercised over their own judgments. Had the application been made to that court to set aside this judgment, to let in this defence, it would have been refused. The court of chancery will adopt the same equitable rule.
   The Chancellor.

The vice chancellor was right in dissolving the injunction in this case upon the matter of the bill alone, without reference to the facts stated in the affidavits on the part of the defendants. The material facts constituting the only equity upon which the injunction rest»ed, were not verified in such a manner as to authorize the issuing of a general injunction ex parte to stay the defendant from proceeding until a regular answer could be put in. The complainant does not profess to know any thing of the facts upon which his application for an injunction is founded. He therefore merely swears to his information and belief; which information may have been derived from those who were no better informed than himself on the subject. Such an allegation is undoubtedly sufficient in a bill to call for a discovery from the defendant of the fact thus stated ; and it may in certain cases be sufficient to authorize the issuing of an injunction, where the defendant has had an opportunity tó be heard in opposition to the application. (Mumford v. Sales, In Chan. 20th March, 1838; The Attorney General v. The Bank of Columbia, 1 Paige’s Rep. 511.) But upon an application for a general injunction ex parte, if the complainant has no personal knowledge of the facts upon which the right to the injunction rests, he should state the facts upon his information and belief, and should annex to the bill the affidavit of the person from whom he derived his information, and who can swear to the facts. Cases may sometimes arise in which, from peculiar circumstances, it is impossible to procure the affidavit of any one who can swear positively to the existence of the facts upon which the complainant seeks for an injunction. In such cases, upon a hill sworn to by the complainant, charging the facts upon his information and belief, and showing why it is impossible to procure the affidavit of the person from 'whom he derived his information and who knew the facts charged, the injunction master, instead of allowing a general injunction, should give the defendant an opportunity to be heard, by directing an order to show cause, as authorized by the 32d rule. In cases of emergency, where serious injury would probably be done to the complainant before a reasonable time to show cause would expire, the master, upon a bill thus framed, may allow a temporary injunction in the mean time ; which" falls of course when the time for showing cause arrives, if not continued by the court. Where an ex parte injunction is granted, as in this case, upon the mere oath of the complainant as to his belief of the material facts charged, and without any excuse for not procuring and annexing to his bill the affidavit of the person from whom the complainant’s information was derived, and who professed tó know the facts charged, it is a matter of course to dissolve the injunction, before answer, upon a proper application, under the provisions of the 34th rule.

I am inclined to think, also, that this was not a case in which the complainant was authorized to come into this court for relief, under the provisions of the statutes for the prevention of usury, without an offer to pay what was equitably due. It does not appear to be within the third .section of the act of May, 1837, to prevent usury ; (Laws of 1837, p. 487;) as the defendant had perfected his judgment -on the note before that act took effect. And before the passage of that act, a party who had a defence at law could not come into this court to ask for a discovery, or an injunction, without offering to pay the money actually lent. Whether the eighth section of the title of the revised statutes relative to the interest of money, (1 R. S. 772,) and the third section of the act of May, 1837, for the prevention of usury, embrace the case of a mere surety, who is not the borrower of money loaned, is a question not necessary to be decided here. But certainly, if it was proper in behalf of the borrower to compel the usurer to criminate himself, or what is much more probable, to tempt him to commit perjury to screen himself from the penalty of his violation of the laws of his country, I can see no good reason why the same remedy should not have been extended to the innocent surety, who is generally the principal sufferer in such cases; as the borrowing of money upon usury generally ends in the insolvency of the real debtor.

There are certain cases in which a court of equity interferes to relieve a party against a judgment at law, although he might have made his defence there if he had availed himself of it in season. But it must be a special case to sustain such a bill, where no discovery was requisite to establish the defence at law ; as it is in the nature of an application for a new trial, which courts of law generally grant upon equitable terms. Where a party, however, has made a slip by which he has lost his legal right of setting up a defence which is to operate as a penalty upon the~other party, courts are not in the habit of relieving the party who is seeking more than equity, unless he consents to do what is equitable and just as between him and the adverse party. In this case, as the complainant had been deprived of his defence at law by the neglect of the principal debtor to in-' form him, until after the judgment, that such a defence existed, I presume the supreme court would have permitted him to come in and make his defence as endorser of the note, upon payment of the amount, actually loaned, with interest, and the extra costs occasioned by his neglect to make the defence in an earlier stage of the suit. And under the circumstances of the case a court of equity ought not to interfere upon any other terms, even if the supreme court would not have permitted the complainant to make his defence there.

For these reasons the order of the vice chancellor, dissolving the injunction, must be affirmed with costs.


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    Butler vs. Stoddard and others.
    Where B. commenced a suit at law for the recovery of a debt due him by S. and pending the suit, S. assigned to T. & T. in payment of a debt of $700, his store of goods inventoried at cost prices at $438, and his choses in action of the nominal amount of $1209, of which $875 were good and collectable, and S. after the execution of the assignment was left in possession of the goods, and accounts, to sell the former and collect in the latter for the sole benefit of T. & T., paying him a reasonable compensa, tion out of the same for his services; it was held that the assignment was fraudulent and void.
    The nominal appointment of the vendor of a store of goods, as an agent, to retain the possession and retail the goods for the vendee, without any visible change in the mode of doing business at the store, is not a change of possession within the intent and meaning of the statute on the subject.
    The sale will be deemed fraudulent as against creditors, unless it is accompanied by an actual and continued, as well as a nominal and constructive change of possession.
    This was an appeal from a decree of the vice chancellor of the fifth circuit, dismissing the complainants’ bill. The complainants were judgment creditors of the defendant Stoddard, and their execution against him had been returned unsatisfied. The bill was filed to reach his property and choses in action, and to set aside an assignment thereof to the defendants Thurber & Townsend as fraudulent. While the complainants were proceeding in their suit at law against Stoddard for the recovery of their debt, he made an absolute assignment of his store of goods, inventoried at cost prices at about $436; and of all his debts and choses in action, of the nominal amount of $1209 ; of which debts, according to the testimony of the witness, about $875 were good and collectable. The consideration of his assignment, which was absolute on its face, was a debt due from Stoddard to the purchasers of about $700. And Stoddard, af:er the execution of the bill of sale, was left in possession of che store of goods, and of the notes and accounts, to sell the goods and collect in the debts for the sole benefit of Thurber & Townsend ; they paying him a reasonable compensation out of the same for his services as their agent.
    April 17.

      O. B. Mattison & S. Beardsley, for the complainants.
    The assignment was absolute. There is no pretence in the pleadings or proofs, that it was given by way of mortgage or security. According to the inventory prepared and accepted by Thurber & Townsend, the property assigned exceeded, their debt upwards of 130 per cent. According to the proofs and the admissions in the answer, the actual available value of the property assigned was upwards of 100 per cent mbre than Thurber & Townsend’s debt. It conclusively follows, that although'the assignment may have been in part for a good consideration, yet as to the remainder it was a mere voluntary gift, and consequently thus far wholly void as to creditors. The rule is well established that a conveyance or assignment void in part by statute is void in toto—in the language of Chancellor Kent, the whole is “ poisoned.” This conveyance then is radically defective and cannot be supported. If not deemed void by reason of the voluntary gift as above stated, the enormous excess in value conclusively implies “ a secret trust and confidence” for the assignor; and for this cause, the conveyance is void. There are numerous other unequivocal and unexplained badges of fraud throughout this transaction. The whole spirit of the statute of frauds, and the whole policy of the law, forbid that this assignment should be upheld. In any event, even if the defendants Thurber & Townsend should be decreed a preference in the payment of their debt, 'they ought, under the circumstances and after the offer made through Matteson, to be charged with the costs of this suit.

      S. Stevens, for the defendants.
    It is perfectly well settled, that a debtor in failing circumstances may prefer one creditor to another and assign the whole of his property for the benefit of a single creditor to the exclusion of others. There is no, fraud in this cause. The defendants deny all intention of fraud, and there is not a shadow of proof to support the allegation of fraud. The assignment is absolute on the face of it; and if more property has been assigned than would pay the debt of Thurber & Townsend, still the assignment is good unless there was fraud in the transaction. The bill in this cause is framed'with the single view of setting aside the assignment as fraudulent, and not for reaching any surplus that might by possibility be in the hands of Thurber & Townsend after the whole of the goods are disposed of and the debts collected. The bill therefore should be dismissed with costs.
   The Chancellor.

Upon a careful examination of the answers of the defendants and the evidence in this case, I think the conclusion of the vice chancellor, that the assignment of Stoddard’s property was not fraudulent, was erroneous. Independent of the legal presumption of fraud arising from his continuance in possession after the execution ef the absolute bill of sale, I think the amount of property assigned was, at its fair value, much more than sufficient to pay the debt due to the purchasers. The case would have been somewhat different if Thurber & Townsend had taken the property in absolute satisfaction of their debt and at their own risk; or if they had taken an assignment of the property in trust for the other creditors, after securing,to themselves a preference in payment out of the same. But, as I understand the transaction, the bill of sale to them was absolute, so as to give them the full benefit of all the property and debts assigned if the amount realized therefrom should be more than the amount of their debt, but to be applied to the extinguishment of their debt pro tanto only if the proceeds of the' assignment should for any reason turn out to be less. As the nominal amount of the goods and debts assigned was more than doubtle what was actually due to Thurber & Townsend, I can see no reason for the making of an absolute sale and assignment of all this property to them, without any risk of loss on their part, unless it was upon some secret or implied understanding, between the parties to that transaction, to keep the surplus from otheiLCreditors, and for the benefit of Stoddard himself.

¡^Besides ; there never was in fact any change of the possession of the assigned property until after the issuing of the complainants’ execution; as the nominal appointment of the seller as the agent of the buyers, to retain the possession and retail the goods and collect in the debts for them, without any visible change in the mode of doing business at the st0re, was not a change of possession within the intent and meaning of the statute on this subject. The sale must be accompanied by an actual and continued change of possession as well as a nominal and constructive change, or the transaction will be deemed fraudulent as against creditors; and a construction which would allow the vendor or assignor of a store of goods to continue in possession thereof, and to sell them out as the agent of the purchaser or assignee, would render this statutory provision for the prevention and detection of frauds a mere nullity. (Hart v. Acker & Gedney, In Chan. April 3, 1838, S. P.) For these reasons, the decree of the vice chancellor must be reversed with costs; and a decree must be entered declaring the assignment from Stoddard to Thurber & Townsend fraudulent and void as against the complainants. But as the complainants had no lien upon the goods, as against other creditors, until the issuing of the execution, or upon the debts and choses in action of Stoddard until the filing of the bill in this cause, the monies received by Thurber & Townsend before the filing of the bill, for debts collected previous to that time, or for goods sold before the complainants obtained a lien thereon by the issuing of their execution, the defendants Thurber & Townsend have a right to retain such monies in part payment of their debt. But they must account to the complainants for the value of the goods on hand at the time of issuing the execution; as the complainants by reason of this fraudulent assignment were prevented from reaching those goods by their execution. The complainants are also entitled to all the debts and choses in action which had not been collected and actually paid over to Thurber & Townsend at the time of the commencement of this suit. The defendants must therefore account for any monies received by them, either from Stoddard or any other person since that time, on account of such debts, or which may have been received by Stoddard as their agent. It must therefore be referred to a master tq take an account accordingly; allowing interest as shall be just. The master is also to appoint a receiver, to whom the defendants are to assign and deliver over on oath, under the direction of the master, the notes, book accounts and other demands remaining uncollected ; with the usual powers to such receiver. The master is also to take an account of what is due to the complainants for principal and interest on their judgment. And the question of costs, and all other questions and directions, are reserved until the coming in and confirmation of the report,

       Affirmed, on appeal to the court for the correction of errors, Jan. 1839.


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    Waller vs. Harris.
    Where H. purchased at sheriff’s sale, on the 25th July, 1832, certain lands under a judgment against M., docketed in February, 1825, and the day after the sale H. took an assignment of a prior mortgage, dated Jan. 25, 1820, and H. was also the owner of a judgment against M., docketed in March, 1824, and also of a judgment in favor of B. docketed in November, 1827; and W. was also the owner of a judgment against M. docketed in February, 1832; and after the assignment of the mortgage to H. she foreclosed the same under the statute and bought in the premises; and the surplus beyond the mortgage debts he applied on the eldest judgment, docketed in March, 1824; and on the 25th day of October, 1833, the last day of the fifteen months from the sheriff’s sale, H. furnished the sheriff certified copies of the docket of her two judgments which were junior to that on which the property was sold, with her affidavit that she was the owner, and , specifying the amount due.on each; and afterwards, in the evening of the same day, W. applied to the sheriff to redeem the premises upon payment of the original bid and interest, and produced the requisite affidavit but no copy of the docket as required by the statute; and the sheriff permitted him to redeem, without paying the amount due on the two prior judgments owned by H., and afterwards falsely represented to the agent of H. thatW. produced a copy of the docket of his judgment on redeeming, and the agent acting upon this representation received the redemption money, and the sheriff gave W. the deed; and as soon as the false representation was discovered, the agent of H. offered to return the money with interest; and W. afterwards applied to H. to redeem the premises from the mortgage, which H. refused; It was held, that W. not having redeemed the premises from the sheriff’s sale as required by the revised statutes, he was not entitled to the sheriff’s deed, and that he was therefore not entitled to redeem,.thqm from the mortgage; also hold that both the legal and equitable title was vested in H.
    The decree upon a bill to redeem should fix the time within which the redemption is to take place ; and should direct that the complainant’s bill be dismissed with costs, if the money is not paid within the time prescribed.
    It is erroneous to deqree a perpetual injunction to stay proceedings in 'á suit against third persons, not parties or privies to the suit in which the decree is made.
    The surplus arising on a sale under a statute foreclosure of a mortgage, cannot be claimed by a subsequent incumbrancer, unless he releases to the purchaser all future claim upon the equity of redemption,; which equity is not foreclosed as to him.
    In order to make a valid redemption of lands from a sheriff’s sale under a judgment and execution, the directions of the statute must be strictly complied with; the sheriff has no power or discretion to dispense with any one of them.
    A redemption was held invalid for the non-production and delivery to the sheriff, on the redemption, of a copy of the docket of the judgment under which the redemption was claimed to be made, duly certified, as required by the revised statutes.
    May 1.
    This was an appeal, by the defendant, from a decree of the vice chancellor of the fourth circuit, allowing the complainant to redeem certain premises from a statute foreclosure under a mortgage. The premises originally belonged to Daniel Mason, and had with other premises been sold by the sheriff of Washington county, by virtue of an execution on a judgment against Mason and another in favor of Barker ; which judgment was docketed in February, 1825. The sale under this execution took place on the 25th of July, 1832 ; and the property of Mason was bid in by the defendant Lucretia Harris, for #801. The incumbrances upon the premises in controversy in this cause, at the time of the sheriff’s sale, were as follows: 1. A mortgage from D. Mason to Stephenson, dated 25th of January, 1820 ; which mortgage was assigned to the defendant L. Harris the day after the sheriff’s sale, there being then due thereon something more than #800; 2. A judgment in behalf of J. Harris, the defendant’s testator, against D. Mason and D. L. Ma"son, docketed in March, 1824, on which the defendant L. Harris claimed to be due to her, as executrix, between fifteen and sixteen hundred dollars; 3. The judgment in favor of Barker, under which the premises were sold by the sheriff; 4. A judgment in favor of Bradley and others against D. Mason, and J. Harris deceased, docketed in November, 1827, and assigned to the defendant L. Harris in 1831, on which there was due about $700 ; 5. A judgment in favor of J. Waller, the complainant, against D. Mason, docketed in February, 1832, on which was due between six and seven hundred dollars ; and 6. A judgment in favor of the defendant L. Harris, against D. Mason, but recovered in the name of E. Lord, on which there was due about $175. After the assignment of the Stephenson mortgage to the defendant, in July, 1832, she proceeded to foreclose it under the statute, and the premises in controversy in the suit were bid in for her, by her agent, on the 31st of January, 1833, for $1700; the surplus of which sale, beyond the amount due on the mortgage, and costs, she applied on the judgment due to her as the executrix of J. Harris, the oldest lien upon the premises subsequent to the mortgage. On the 25th of October, 1833, the last day of the fifteen months allowed to creditors to redeem the property from the sheriff’s sale, the defendant L. Harris furnished to the deputy who sold the property on the Barker execution, certified copies of the docket of her two judgments which were junior to that on which the property was sold, together with her affidavit stating that she was the exclusive owner of the two judgments, and specifying the true sum then due on each. Afterwards, in the evening of the same day, the complainant J. Waller, in the absence of the defendant and her agent, applied to the sheriff to redeem the premises from the sheriff’s sale upon payment of the original bid and interest. He produced and delivered to the sheriff an affidavit, stating the recovery of his judgment against D. Mason and the amount due thereon, but produced no copy of the docket of his judgment, as required by the statute. The sheriff thereupon permitted him to redeem the premises, upon paying the amount of the original bid and interest merely, and without paying the amount due to the defendant on her prior judgment, assigned by Bradley and other's, as specified in her affidavit. And the sheriff having afterwards falsely represented to the agent of the defendant that Waller produced the docket of his judgment, the agent, acting under the belief that such representation was true, received the redemption money thus paid, and the sheriff gave the complainant the deed. But as soon as the fraud and imposition were discovered, the defendant applied to the complainant and insisted upon her right to the property under the sheriff’s sale, and offered to repay him the money so received, with interest thereon; which the latter refused to accept. The complainant after-wards applied to the defendant to redeem the premises from the mortgage on which the statutory foreclosure had been completed. But she refused to permit him to redeem; claiming that his equity of redemption was extinguished by the sale to her under the prior judgment of Barker, and that he had not legally redeemed the premises from the sheriff’s sale. The defendant having brought an action of ejectment against D. Mason and B. Safford, for the recovery of the mortgaged premises in their possession, the complainant filed his bill in this cause to redeem the premises from the sale under the mortgage, arid for an injunction to stay the ejectment suit. The vice chancellor decided and decreed that the complainant was entitled to redeem the premises from the defendant, upon paying the amount due on the mortgage with interest thereon up to the time of the offer to redeem within six months thereafter, or such other time as the vice chancellor might allow for that purpose ; and that upon the payment of that sum the defendant should give to the complainant a release and conveyance of the mortgaged premises, with covenants against her own acts. He also decreed a perpetual injunction against the proceedings in the ejectment suit against Mason and Safford. From this decree the defendant appealed.

      J. Holmes & S. Stevens, for the appellant.
    The complainant, if he regularly redeemed from the sale under the Barker judgment, cannot redeem from the sale under the mortgage; because no person holding the mortgagor’s equity of redemption can redeem. The mortgagor and all deriving title under him are foreclosed. (2 R. S. 546, § 8. 10 John. Rep. 195, by Kent.) A purchaser at a sheriff’s sale buys the debtor’s equity of redemption under a mortgage. (7 Cowen’s Rep. 553.) If the complainant could redeem as holding title under the Barker judgment, the defendant’s judgment of March, 1824, was older than the judgment and younger than the mortgage ; he could not cut that off; it was a lien upon the property. The defendant’s bid was an application of the surplus upon this judgment. This judgment has since ceased to be a lien upon real estate. The complainant cannot redeem as a judgment creditor, as in this way he would cut off the judgment last mentioned and also the Bradley judgment, which would be both inequitable and illegal; and also because his judgment has been paid by the property redeemed under the Barker sale, which was not covered by the mortgage.
    Again; the complainant has not in fact redeemed under the Barker judgment, as he produced no certificate of the docket of his judgment, and the defendant was induced to receive the money by fraud; which money she has offered to pay back, and still offers by the pleadings. (2 R. S. 373, § 60.) The sheriff’s deed is of course a nullity, and the sale under the Barker judgment takes away the lien of all junior judgments, of the complainant’s with others, so that he cannot redeem. The sheriff acts ministerially in cases of redemption, and has no discretion to exercise. The statute is not that the sheriff shall be satisfied, but that certain things shall be done. (1 Cowen, 495, 498, 499. Session Laws of 1820, p. 107, § 2.)

      A Taber, for the respondent.
    The complainant claims the right to redeem because he is a judgment creditor of Mason, subsequent to the mortgage, and has redeemed from the sale under the Barker judgment, and has thus acquired title to the land. The proofs show that a certificate of the docket of the complainant’s judgment was delivered to the sheriff, but it may be inferred that it was not received by him until the next morning. (2 R. S. 373, § 30. The People v. Livingston, 6 Wendell, 526.) It is proved that at the time of the payment of the money the complainant delivered to the sheriff and left with him the original execution issued in this cause, and upon which the sheriff had collected about one half the amount of the judgment. This is a substantial compliance with the statute. (Miller v. Johnson, 2 Wendell, 197.) The evidence of the right to redeem which the statute requires should be furnished to the sheriff, is for his information, to regulate his action, and he is to judge of its . sufficiency. The sheriff might not be bound to regard the parties’ rights to redeem without a strict compliance with the literal requirements of the statute; but if equivalent testimony is furnished him and he is satisfied to act upon it, and does act and acts correctly, and the party gets his legal rights and nothing more, third persons have no right to interfere. In order to redeem under the mortgage, a creditor is only bound to pay the sum due on thj mortgage, and not even the costs of foreclosure and sale. (Benedict v. Gilman, 4 Paige’s Rep. 58.) The decree of the court in this case cannot vest a title in the defendant under the sheriff’s sale. To obtain such relief she should have filed a cross bill. (18 John. Rep. 544.) As a general rule, the complainant claiming to redeem must pay costs ; but if the defendant improperly resist the claim of the complainant to redeem, he will not only be refused costs but may be compelled to pay costs to the adverse party. (Vroom v. Ditmas, 4 Paige’s Rep. 535.) The defendant has no legal or equitable claim to have the senior incumbrances paid off by the party electing to redeem. The lands are liable to pay these incumbrances. The bill does not seek to avoid them, nor in any way affect them. When they are attempted to be enforced we shall claim the privilege of paying them off. Our rights are not foreclosed, either as owners or judgment creditors. By this bill we seek to redeem at common law, which we have a right at common law to do, either as owners or judgment creditors. Our rights are expressly reserved by the statute of foreclosure.
   The Chancellor.

The decree in this case is erroneous in some particulars, independent of the important question upon the merits, as to the regularity of the complainant’s redemption of the premises from the sheriff’s sale. The decree upon a bill to redeem should fix the time within which the redemption is to take place ; and should direct the complainant’s bill to be dismissed with costs if the money is not paid within the time prescribed. Here the complainant is to have six months, and such further time as the court may allow for that purpose; and without allowing to the defendant the interest, on the amount originally due, in the meantime. And no provision is made in the decree for the dismissal of the bill, so as to foreclose the complainant’s equity of redemption if he neglects to redeem within the time prescribed. Even if it was just and equitable to deprive the defendant of the interest of her money from the time of the tender, upon the supposition that the complainant had kept the money always ready since that time, surely there could be no good reason for permitting him to keep the money six months longer without interest.

Again; it was erroneous to decree a perpetual injunction to stay the proceedings in the ejectment suit against third persons, not parties in this cause, and without paying to the plaintiff in that suit the costs which had accrued therein at the time of the complainant’s offer to redeem. The foreclosure of the mortgage was certainly valid as against D. Mason the mortgagor. The ejectment suit was therefore properly commenced against him, to recover the possession of the premises, and the rents and profits of the premises from the time the statutory foreclosure was completed, even if the complainant had a right to redeem. D. Mason being in possession at the time that foreclosure was completed, he became a tenant at will to Mrs. Harris from that time. And he certainly had no right to attorn to the complainant, so as to become his tenant, until the latter had obtained some pretence of right to the possession of the land, by a tender of the money due on the mortgage. The ejectment suit was therefore rightfully commenced ; and if Mason had been a party to this suit Mrs. Harris should not have been enjoined from proceeding against him, until he had paid the costs, and the rents and profits of the premises, or the interest on the- mortgage monies during the time she has been deprived of them by this decree.

From the conclusion at which I have arrived on another part of this case, it is not necessary that I should inquire whether it was competent, under the pleadings in this cause, to examine into the consideration of the judgment of J. Harris against D. Mason and. J. L. Mason, in 1824. As the statute foreclosure was a mere nullity as against subsequent incumbrancers, no such incumbrancer had any right to claim the surplus raised on that sale, unless he first released to the purchaser all future claim upon the equity of redemption. In other words he could not take the price of the equity of redemption, which was supposed to be foreclosed, and at the same time retain his right to redeem as against the statute foreclosure. The surplus on that sale was therefore a matter between D. Mason and Mrs. Harris, with which this complainant has nothing to do. And if he redeems the premises from the statute foreclosure, then there is in fact no surplus for which she is bound to account to any body. But if the premises were not properly redeemed from the sheriff’s sale, so that the equity of redemption as to all incumbrancers, subsequent to the Barker judgment, was cut off by the sale under that judgment and the statute foreclosure, then the defendant has a right to apply that surplus to the payment of her two last judgments against D. Mason, if she thinks proper to do so, as to the validity of which there is no dispute.

The evidence in this case shows conclusively that the complainant did not comply with the directions of the statute, in His attempt to redeem the premises from the sheriff’s sale to Mrs. Harris; for the copy of the docket of the judgmenl was not produced to the sheriffwithin the time allowed by law for redeeming. And the receipt of the money by the defendant’s agent, under the false representation by the sheriff that the certified copy of the docket was produced, did not alter her rights; as she repudiated the transaction, and offered to return the money and interest, as soon as she ascertained that her agent had been decieved and imposed upon by that misrepresentation of fact. Even if the statutory directions in relation to the redemption of lands by a judgment creditor could be dispensed with by the sheriff, the conduct of the officer m this case was unjust and oppressive towards Mrs. Harris. For if he could dispense with a technical compliance with the directions of the statute, to enable Waller to redeem the premises from her purchase, it was equally his duty to dispense with a similar technicality to preserve her rights as a prior judgment creditor. In this case it will be seen that Mrs. Harris was the owner of a judgment junior to that under which she had bid off the property, but prior in date to that under which the sheriff permitted Waller to redeem ; and that she had done every thing which was necessary to satisfy the sheriff that she was entitled to be paid that judgment, in addition to the amount of her bid, except that she did not comply with the technical requirements of the statute, by producing to him the assignment of that judgment from Bradley and others, in addition to the copy of the docket and her affidavit that the judgment belonged to her, and of the amount then due thereon. The sheriff therefore, if he meant to be governed by the principle of doing equal and impartial justice to both parties, should either have required a strict compliance with the requirements of the statute on the part of Waller, or he should have dispensed with a technical compliance on the part of Mrs. Harris. And as he permitted Waller to redeem upon an affidavit only, and without the clerk’s certificate of the docketing of the judgment, he should have considered Mrs. Harris’s affidavit equally valid as that of Waller’s agent. He therefore should have required Waller to pay the amount due to Mrs. Harris on the prior Bradley judgment, in addition to the amount of her bid, although the assignment was not annexed to her affidavit, beforé he permitted him to redeem upon papers which were technically defective.

The evidence in the case shows that the Bradley judgment was a lien upon the land, prior in point of time to that upon which the complainant attempted to redeem. And as Harris was a mere surety for the other defendant in the judgment, the payment of the judgment by his executrix, and taking an assignment thereof for her own security, did not discharge the lien upon the land of the principal debtor. On the contrary if Harris had himself been living, he would in equity, upon the payment of the debt, have been subrogated to all the rights and remedies of the plaintiffs in that judgment ; and could have enforced the lien of the judgment against the lands of his co-defendant, the real debtor. Here Mrs. Harris adopted a course, in relation to the Bradley judgment, by which the lien thereof was preserved as against the lands of the real debtor, at law as well as in equity ; for she bought in the judgment and took an assignment thereof, for the protection of the estate of the surety. As such assignee, therefore, she had a perfect right to redeem under the statute, (2 R. S. 273, § 58.) And she had done every thing requisite to entitle her to the payment of that judgment, upon a redemption by a junior judgment creditor, except the production to the sheriff of the assignment itself in addition to her affidavit proving the fact. If I supposed, therefore, that the sheriff had a right,- in his discretion, to dispense with a strict compliance with the requirements of the statute, I should hold this such a gross piece of favoritism on the part of the sheriff, in dispensing with a strict compliance in favor of one judgment creditor, and enforcing it strictly as against another, to the manifest injury of the latter, that a court of equity could not sustain such an unconscientious proceeding. I therefore should not have permitted the complainant to redeem, in any event, without paying the full amount due on the Bradley judgment, and the costs of this suit, in addition to the amount due upon the mortgage, with interest.

Upon a careful examination of the provisions of the statute, however, I am satisfied that it was never the intention of the revisers, or of the legislature, to leave it to the discretion of the sheriff to decide whether he would insist upon, or dispense with, the documentary proof which the party applying to redeem is by law required to produce. And the fact that the exercise of such a discretion might lead to the favoritism and injustice which has occurred in the present case, is a strong if not a conclusive argument against the existence of such a dispensing power on the part of the sheriff. The statute is imperative that to entitle any creditor to acquire the title of the original purchaser or to become a purchaser from any other creditor, under the statute, he shall present to, and leave with such purchaser or creditor, or the officer who made the sale, as one of the evidences of his right, “ a copy of the docket of the judgment or decree, under which he claims the right to purchase, duly certified by the clerk, &c.” (2 R. S. 373, § 60.) It is important, in a case of this kind, that parties should know what their rights are at the time the redemption is to take place; and it will lead to endless litigation if every deputy sheriff in the state is permitted to assume this power to dispense with the requirements of a positive statute, in such cases as he may think proper. If he could dispense with the production of any of the documentary evidence required, for a few hours after the expiration of the fifteen months allowed to redeem, he might also for a few days or weeks, or even for months afterwards. In the case of The People v. Livingston, (6 Wend. Rep. 526,) although the precise question now presented was not then under consideration, the supreme court seems to have taken it for granted that the sheriff had no power to dispense with the documentary evidence required by the revised statutes, in the case of a sale made subsequent to the time when those statutes took effect. The conclusion at which I have arrived in this case therefore is, that the complainant did not legally redeem the premises from the sale on the execution in favor of Barker; and that he acquired no title to the premises under the sheriff’s deed. Of course he had no right to redeem the premises from the mortgage, the equity of redemption being then in the defendant under the sheriff’s sale, although she had not obtained a transfer of the legal right by the execution of a deed from the sheriff. At the expiration of the' fifteen months, the liens of all the judgment creditors subsequent to the judgment under which she bid in the property were absolutely cut off; and their equitable rights to redeem the premises from the statute foreclosure were thereby forever extinguished. The defendant having united her equitable right, to a conveyance from the sheriff, with her legal title under the statute foreclosure, her absolute title to the land is unquestionable, even without the formality of the execution of a deed from the sheriff; although she has a right to demand the execution of such a deed for the purpose of protecting her title to the other real estate purchased by her at the sheriff’s sale, not included in the mortgage. The decree of the vice chancellor must therefore be reversed with costs; and a decree must be entered, declaring that the premises sold by the sheriff and bid in by Mrs. Harris were not legally redeemed from that sale, by the complainant Waller; that the deed from the sheriff to him was and is absolutely inoperative and void ; and that the complainant, therefore, has no right to redeem the premises in question in this suit from the Stephenson mortgage ; and that the bill in this cause be dismissed with costs.

The bill is not properly framed to recover back the money paid to the defendant’s agent by the sheriff, and which she offered to refund when she discovered the deception which had been practised. But as the defendant admits the complainant’s right to the money, the latter, if he thinks proper, may insert a provision in the decree for the refunding of that money, and the interest thereon; upon his procuring from the sheriff a deed to her for the several parcels bid off by her on the Barker execution, and paying to her the value of the use of the premises which, by the injunction in this cause, she has been kept out of the possession of pending this suit. If he does not agree to these terms the bill is to be dismissed, without prejudice to his right to proceed at law, or in equity, as he may be advised, to recover back the monies paid by the sheriff to the defendant’s agent.

       Affirmed on appeal to the court for the correction of errors, Dec. 1838.


text:
    Noyes vs. Clark and others.
    Where a bond and mortgage for the payment of $800 in five years, with annual interest, contained a condition that if default should be,made in the payment of interest or any part thereof at the time it became due, the whole principal and interest should become due by reason of such default; and shortly before the interest became due, in February, 1838, tha mortgagee, who had assigned the bond and mortgage and guaranteed its payment, informed the mortgagor he had so assigned it, but gave no information of the residence of the assignee; and the mortgagor, being unable to find the sup. posed assignee, tendered the interest to the mortgagee on the day it became due, who refused to receive it, and shortly afterwards the assignee filed a Ml to foreclose the mortgage; Held that the tender of the interest to the mortgagee was sufficient to save the forfeiture, or at least sufficient to authorize the court to stay the proceedings, upon the payment of the interest then due, until further default in payment of the principal or interest.
    Where a creditor keeps out of the way to prevent a tender of the amount due him, a suit commenced by such creditor for the recovery of the debt will be stayed, upon the payment of the amount due, without -costs, although a technical right of action existed at the commencement of the suit.
    Where the mortgagor has from mere negligence failed to perform his contract, whereby the whole debt becomes due and payable according to the terms of the mortgage, the court will not interfere to relieve him, without a tender or payment of the whole debt.
    A court of equity will not permit the mortgagee, or his assignee, to take an unconscientious advantage of the mortgagor, who is willing to pay at the time prescribed but is unable to do so in consequence of the act of the otherparty-
    Tras was an application to stay the proceedings in a foreclosure suit, upon payment of the interest due on the bond and mortgage. The bond and mortgage were given the 10th of February, 1835, conditioned to pay $800 five years from date, with annual interest thereon, at five per cent. The bond and mortgage also contained a condition that if default should be made in the payment of the interest, or any part thereof,- at the time it became due, the whole principal and interest should become due by reason of such default. H. L. Clark, the mortgagor, paid the interest for the years 1836 and 1837 to V. G. Hall, the assignee of the bond and mortgage. Shortly before the interest became due in February, 1838, Hall, who had assigned the bond and mortgage to T. Roberts and guaranteed their payment, inforraed Clark that he had so assigned them, but gave him no information of the residence of the assignee so as to enable him to pay the interest when it became due. Clark, after many ineffectual attempts to find the supposed assignee, or his place of residence, tendered the interest to Hall, on the day it became due, who refused to receive the same on the ground of the alleged assignment, although no assignment from Hall to Roberts was to be found on record. Shortly afterwards, and w'hile Clark was endeavouring to find out the residence of the supposed assignee, he was served with a subpoena in this cause, upon a bill filed by the complainant, as the assignee of Roberts, to foreclose the mortgage.

      May 1.

      M. T. Reynolds, for the complainant.

      J. Edwards, for the defendant Clark.
   The Chancellor.

I think, from the petition of the defendant Clark, when taken in connection with the affidavit of the complainant, there can be very little doubt of a concerted plan between Hall and Roberts to deprive the mortgagor of the power of paying the interest, on the day when it became due, for the purpose of compelling him to pay the principal monies two years before the time of credit given by the condition of the bond and mortgage. The parties to the original agreement had an unquestionable right to make the extension of credit dependant upon the punctual payment of the interest at the times fixed for that purpose... And if, from the mere negligence of the mortgagor in performing his contract, he suffers the whole debt to become due and payable, according to the terms of the mortgage, no court will interfere to relieve him from the payment thereof according to the conditions of his own agreement. (Steel v. Bradfield, 4 Taunt. Rep. 227. James v. Thomas, 5 Barn. Adol. 40.) A court of equity, however, will not permit the mortgagee, or his assignee, to take an unconscientious advantage of the mortgagor who is willing to pay at the time prescribed, but who is unable to do so in consequence of. the act of the other party; especially where there is reason to believe the default in payment was the result of a mere trick to defraud the mortgagor of his rights, by depriving him of the power of making the payment at the time prescribed. In this case it is evident that the defendant Clark was both ready and willing to pay the interest on his bond and mortgage on the day it became due. And if the assignee did not intentionally deprive him of the power of doing so, by keeping out of the way and concealing his place of residence, he transacted the business of the assignment in such an unusual manner as to produce the same result. Under the circumstances, if Roberts intended to take advantage of the neglect of the mortgagor to pay the interest at the day, it was his duty as an honest man to have given notice to Clark of the assignment, and of his residence, or the place where the payment could be made. As he neglected to do this or to put the assignment on record, so as to give the mortgagor the means of ascertaining who he was or where he lived, I am inclined to think the tender of the money to Hall at the day was sufficient to save the forfeiture. At least it is sufficient to authorize this court to interfere and stay the proceedings, upon the payment of the interest now due, until further default shall be made in paying the principal or interest at the times specified in the bond and mortgage.

The complainant appears to have acted in good faith in this case ; as he had no reason to suppose, from the circumstances under which this bond and mortgage was sent to him, that Clark had been deprived of the power of paying the interest according to the terms of his contract. But as it was sent to him to be collected and applied to the payment of a prior indebtedness of Roberts," he sits in the seat of his assignor and cannot be permitted to take advantage of the nonpayment of interest, which it would have been inequitable and unconscientious in Roberts to have done. And as the sum due for interest at the time of the filing of this bill was not sufficient to carry costs, the proceedings of the complainant must be stayed upon the payment of the interest due on the 10th of February, without costs.

The case of Johnson v. Houlditch, (1 Burrows' Rep. 578,) is in point to show the authority of the court to interfere and stay the proceedings in such a case. There the plaintiff had kept out of the way to prevent a tender of the debt; and the court, upon the ground that the suit was oppressive, ordered the suit to be stayed upon payment of the amount due, without costs, although a technical right of action existed when the suit was brought. Costs were also refused in the case of Adams v. Staton, (7 J. B. Moore's Rep. 365,) where the plaintiff’s attorney had sued out a writ after he knew the defendant had called, for the purpose of settling the demand, but could not see him. An order must be entered in this case that, upon the payment to the complainant or his solicitor, within twenty days of the amount of interest due on the mortgage in February last, all proceedings upon the bond and mortgage mentioned in the complainant’s bill be - stayed, until default shall be made in the payment of principal or interest according to the condition of such bond and mortgage, and without reference to the default in the payment of interest heretofore due.


text:
    Knight vs Weatherwax and others.
    Where the testatrix, subsequent to the revised statutes, devised certain lands to her three daughters and their respective heirs, subject to the payment of certain sums of money for debts and legacies ; and further directed that the lands should remain in the hands of her executors for the benefit of her daughters during their respective lives, and then the remainder to be given up to their heirs; and made the three daughters her residuary devisees and legatees; Held that the executors took no estate in the premises under the will; that estates for life were vested immediately in the three daughters, as tenants in common, subject to the payment of the debts and legacies, with a remainder in fee to such persons as should be the heirs of the several daughters at the time of their respective deaths.
    Whether upon a devise to A. for life, with remainder to his heirs, the persons presumptively entitled as his heirs have a vested interest in the remainder, so that a decree against them, for the specific performance of an agreement made by the testator to sell the devised premises, will bar other persons who may be the actual heirs of the tenant for life at the time of his death; quaere ?

      The bill in this cause was filed for the specific performanee of a contract. In 1835, Hannah Hidely being the owner of the premises in question, the undivided half of two houses and lots in the city of Troy, made her will in due form to pass real and personal estate, and thereby devised her interest in the premises as follows : “ 1 give, devise and bequeath to my daughters, Catherine, Elizabeth, and Hannah, and to their heirs respectively, my houses and lots lying in the 6th ward of the city of Troy, subject to pay to my executors such sums of money as will be sufficient to pay my debts, if any there be, and my funeral expenses and grave monuments, within six months after my decease ; and subject also to pay to my son G. H. $100 and to my son M. H. $200 in one year from my decease ; the aforesaid property to remain in the hands of my executors, for the benefit of my said daughters during their respective lives, and then the remainder to be given up to their heirs.” The three daughters were also made the residuary devisees and legatees of the testatrix. After the making of the will and before the death of the testatrix she, by her agents, made a parol agreement with the complainant, who owned the other half of the two lots, to sell her half to him for $1300, and interest from the first, of May, 1836; under which agreement he made extensive improvements upon the lots. The testatrix died suddenly, on the 11th of February, 1837, without having executed a conveyance, and no part of the purchase money having been paid. Subsequent to her death, the three daughters and their husbands, together with the two sons whose legacies were charged on these lots, conveyed all their interest in the premises to the complainant; and he thereupon filed his bill in this cause against the infant children of the three daughters, as their presumptive heirs, for the purpose of perfecting his title to the premises. The infants answered by their guardians ad litem ; and the facts having been ascertained by the report of a master, the cause was heard upon the pleadings and master’s report; the complainant’s counsel not thinking it necessary to the protection of the rights of his client that those who had joined in the conveyance to him should be made parties to the suit.
    May 1.

      H. Z. Hayner, for the complainant.

      G. Gould & J. Romeyn, for the defendants.
   The Chancellor.

Upon the facts stated in the bill, and ascertained by the report of the master, I think there was a sufficient part performance of the parol agreement, to sell the premises to the complainant, to take the case out of the statute of frauds; or in other words, to bring it within the saving provision of the statute. (2 R. S. 135, § 10.) If the master’s conclusion was correct as to the construction of the will, these defendants have no interest whatever in the premises contracted to be sold; in which case the bill should be dismissed with costs, on the ground that they were unnecessarily and improperly made parties to a bill for the specific performance of the contract of sale, I do not however agree with the master in his conclusion, that the three daughters of the testatrix took estates in fee in their undivided portions of the premises, under this will. By the express provisions of the revised statutes, a bond, agreement or covenant to convey property devised or bequeathed by a previous will is not to be deemed a revocation, of the will, either at law or in equity; but such property is to, pass by the devise or bequest, subject to the right of the purchaser to a specific performance. (2 R, S. 64, § 45.) Whether the two lots were to be considered as real or personal estate after the making of the agreement to sell the same, the interest of the testatrix therein passes to the objects of her bounty, as specified in the first clause of her will, in the same manner as if that agreement had not been made ; subject to the complainant’s right to a specific performance of the contract, upon payment of the purchase money and interest, according to the terms of his agreement, for the benefit of whoever may be entitled to the same under that clause of the will.

The testatrix probably intended to vest the legal estate in her executors, as trustees for her daughters during their respective lives, and to limit the remainder, in the undivided share of each daughter, to such persons as should be the heirs of such daughters at their respective deaths. And if she had succeeded in creating valid trusts, to receive and apply the rents and profits to the use of the daughters for life, their interests would have been inalienable ; so that it would have been absolutely necessary to make them as well as the executors parties to the bill for a specific performance, so that the interest of the daughters in the income of the purchase money might have been protected from alienation. I think however the testatrix has not created a valid trust, so as to vest any estate or interest in the executors; and that the legal estate for life is vested in the daughters as tenants in common, charged with the payment of debts and with the payment of the legacies to their two brothers. (I R. S. 727, § 45, 47, 49.) As the daughters take the legal estates for their respective lives, as tenants in common, with a limitation over of legal estates in remainder to their several heirs, the operation of the rule in Shelly's Case would have given the absolute estate in fee to the daughters, as tenants in common, if the rule itself had not been abolished by the revised statutes. But under the laws in force at the time of making this will, and also when it went into effect by the death of the testatrix, the limitation over of the remainders in fee to the heirs of the daughters is valid, and will vest such remainders in those who may be their heirs at the time of their respective deaths, as purchasers. (1 R. S. 725, § 28.) The present defendants, therefore, have no absolute interest in the premises during the lifetime of their respective mothers, although they are now their apparent heirs at law. It may be somewhat doubtful therefore whether the remainder is so vested in these defendants that a.decree for a specific performance against such presumptive heirs will be a bar to the legal title of others who may happen to be the real heirs of the tenants for life at the times appointed for the vesting of the ultimate remainders in fee; though I think it is. And as the complainant has already obtained a conveyance of the legal title from the devisees for life, and from the heirs at law of the testatrix, the only other persons who have at this time any vested estate or interest in the premises, he may, if he thinks proper to do so, have a decree for a specific performance as against the future contingent interest of these defendants; and their guardians ad litem may execute conveyances, in the names of the infants, with such covenants against the future claims of the defendants as will be sufficient to bar their rights respectively if the remainder in fee shall eventually vest in them, as the heirs of the tenants for life, under the will.

The purchase money agreed to be paid, together with the interest there on from the time of the agreement to the death of the testatrix, is the interest in the premises that remained in the testatrix, and which passed under the will. The daughters took life estates in the future interest or income of that fund, which was then due for the purchase money, subject to the payment of the charges for debts and legacies. The complainant, by the conveyance of the 24th of October, 1837, has obtained the interests of the three daughters in that income, subject to those charges. It is only necessary then to secure to the- heirs of the three daughters the capital of the fund, whenever 'the remainders in fee shall vest in possession by the termination of the life estates respectively. The complainant therefore must either pay into court the amount due at the death of the testatrix, to be invested by the register, and the income of one third thereof to be paid over to the complainant during the life of each daughter who has a life estate in that third; or he must give security, by way of bond and mortgage upon unincumbered real estate of double the value, exclusive of buildings thereon, conditioned to pay over to the register, for the use of such persons as may then be entitled to the same as heirs at law, one third of the amount upon the death of each of the daughters of the testatrix. But the costs of all the parties in this suit are properly chargeable upon the purchase money due at the death of the testatrix. It is only necessary therefore for the complainant to pay into court or secure the balance of the fund, after paying the taxed costs out of the same.

       See Nodine v. Greenfield, post.