text:
    Miller, receiver, &c. vs. Fenton and Williams.
    Where a bill was filed by the receiver of a bank, against two of its officers, for a fraudulent abstraction of the funds of the institution, committed by them jointly or in concert, and the complainant, after the defendants had put in their answers to the bill, made an agreement with one of the defendants by which certain property was transferred to the receiver; in part satisfaction of his claims against such defendant; in consideration of which agreement the receiver covenanted that, he would not collect from such defendant, or out of, his property, any claim which he had against him individually or jointly with others, upon obtaining a judgment or decree therefor; and that he would leave him and his property fully indemnified,against such judgment or decree or any execution to be issued thereon; but such covenant was not to prejudice the right or claim of the receiver against any other person, or against any other person jointly with such defendant, nor was it to "prejudice or hinder the further prosecution of the ■ suit then pending in chancery against him and his co-defendant;
      Held that the agreement; was no bar to the further prosecution of the suit against the other defencHuP-juid him jointly; and that such other defendant had no right to have the further proceedings in the suit stayed; and that all he could claim in equity, in consequence of the agreement of his co-defendant, was to have the value of the proper™ which was transferred to the receiver, after satisfying the individual claims against such co-defendant, applied in part satisfaction of the claims for which they were both liable previous to the agreement.

      Held further, that if theWllejred agreement had been a technical release of the complainant’s claim againsftbotti defendantN'pd a bar to the further prosecution of the suit, the party could notyayail himself of it By motion.
    Where a defence Arises aftejlthe defendant has perfected his answer, and before the hearing of the cause, tí)? proper míde'oft-tónging it before the court is by a cross bill, in the nature ofa plea puis darrien continuance, and not by a motion to stay the proceedings of the complainant. ,,
    A covenant, by a creditor, not to collect a joint debt out of the property of one of the joint debtors, is not a technical release,, which can be set up by the other debtor in a joint suit against them, even at law. .
    In equity the part satisfaction of a demand by one joint debtor, and a convenant by the creditor not to enforce, the collection of the residue against such debtor’s individual property, will not discharge the other debtors, unless the party in whose favor such covenant is made is primarily or individually liable for the whole demand.
    Wrongdoers are not entitled to claim contribution against each other, although the party injured obtains full satisfaction for his damages from a’jiart of them only.
    This was an appeal from a decision of the vice chancellor of the seventh circuit, denying the appellant’s application to dismiss the complainant’s bill. The application was founded upon an affidavit of the appellant’s solicitor that, since this cause was at issue upon the answer of his client, the complainant had given an instrument, or agreement, to George N. Williams the other •defendant in the suit, a copy of which was annexed to such affidavit ; the effect of which instrument or agreement, as the counsel for the appellant insisted, was to release and discharge the appellant from all further liability on account of the several matters stated in the bill.
    The object of the bill, which was filed by the receiver of the Wayne County Bank, was to charge both defendants on account of certain fraudulént transactions as officers of the bank; by which alleged fraudulent transactions the funds of that institution had been improperly abstracted. .Williams suffered the bill to be taken as confessed ; and Fenton put in an answer, to which a replication was filed. Afterwards, in consideration of certain lands conveyed to the receiver, and other valid considerations, the receiver covenanted with Williams, in substance, that he would not collect from him, or from his individual property, any claims held against him individually, or against him jointly with others, upon obtaining any judgment or decree therefor; and that he would leave him and his property fully indemnified against any judgment or decree thus recovered, or any execution to be issued thereon; but such covenant was not to prejudice the claim or right of action of the receiver against ány other person, or against any other person or persons jointly with Williams; nor was it in any way to prejudice or hinder the prosecution of this suit, but Williams was to be indemnified and saved harmless against any loss or damage which he might sustain by reason of any decree therein, against him.

      A. Gould, for the appellant.

      W. Hubbell, for the respondent.
   The Chancellor.

The case of Couch v. Mills, (21 Wend. Rep. 424,) decided that such a covenant as this was not a technical release which could be set up at law as a bar of an action, even upon a joint note. And in equity the part satisfaction of a demand by one of the parties, and a covenant not to enforce the residue of the claim by execution against his individual property, certainly ought not to be carried further than at law; unless the party in whose favor such covenant was made was the one who was primarily, or individually, holden for the whole demand. In a case of wrongdoers, such as these defendants, by this bill, are charged to have been, the complainant may recover from any one of them for the whole loss:, and he will -have no claim against the others for contribution. (Attorney Gen. v. The Corporation of Leeds, 4 Lond. Jurist, 1174. Cunningham v. Pell, 5 Paige's Rep. 612.) All that the defendant Fenton, therefore, could in equity claim, in any event, in consequence of this agreement, would be to have the actual value of the property, which was transferred to. the receiver, applied in reduction of the amount chargeable against the defendants jointly on account of their joint frauds, after deducting therefrom what' Williams was individually chargeable with on account of any individual claims which the receiver had against him.

The counsel for the defendant, moreover, was wrong in supposing relief could be obtained in this way, even if there had been a technical release to Williams which was a bar to the suit against both. It appears by a reference to the practice of the court that a cross bill, in the nature of a plea puis darrein continuance, is the proper mode of setting up such a defence which arises after the defendant has put in and perfected his answer. (Scott v. Grant, 10 Paige's Rep. 485. Welf. Eq. Pl. 227. Story's Eq. 393. Mitf. 82. Willis, 364. Lube, 229.) The application of the appellant for relief was therefore bad both in form and substance. And the order appealed from must be affirmed with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Slade vs. Van Vechten, trustee, and others.
    Where an execution is in the hands of the sheriff, at the time of a general assignment of the property of the defendant in the execution for the payment of his debts, the lien of the execution upon the personal property liable to seizure and sale thereon, is paramount to the title of the general assignee; the latter not being a bona fide purchaser, within the intent and meaning of the provision of the revised statutes, which protects the title of bona fide purchasers, who have purchased between the delivery of the execution to the sheriff and an actual, levy upon the property.
    If the sheriff levies upon property, and advertises and sells it under an execution, which sale produces a surplus, and another execution comes into his hands, or into the hands of one of his general deputies, between the levy of the first execution and the sale, there is a constructive levy of the second execution from the time it comes into the sheriff’s hands; which constructive levy entitles the execution creditor to the surplus proceeds of the sale under the first execution.
    Where a debtor against whom executions had been issued, which were liens upon his personal estate, made an assignment of his property to a trustee for the payment of his debts, and directed the avails of certain cloth in the process 'of manufacture to be first applied to the payment of notes given to M. & S. for the purchase! money of the wool used in the manufacture of such cloth, after paying the manufacturer’s lien thereon; and the sheriff subsequently sold the cloth upon the prior executions, subject to the manufacturer’s lien, and the same was bid in by the assignee and subsequently sold for a much larger sum; Held that the other part of the assigned properly, as between M. & S. and the general creditors, was the primary fund for the payment of the executions which were liens upon the assigned property; and that M. & S. were entitled to be subrogated to the rights of the execution creditors, against the fund assigned for the payment of debts generally, so far as the cloth assigned for the payment of the debts of M. & S. specifically had been applied in payment of such execution creditors.

      Held also, that the trustee should reimburse himself, for the amount of his bid upon the cloth specifically appropriated for the payment of the debts of M. &S-, out of the proceeds of the property assigned for the benefit of the general creditors; in order to give M. & S. the whole proceeds of the subsequent sale of the cloth, or so much thereof as was necessary to satisfy their debts, after discharging the manufacturer’s lien. ' . ¡ p
    A trustee canndt become a purchaser of the trust property, under a prior incumbrance, for Ids own benefit, and to the prejudice of the cestuis que trust, without their consent.
    And where a trustee purchases in the trust property, under a prior incumbrance, < at a price below its real value, he is always considered as making the purchase for the use and benefit of his cestui que trust.
    Both parties, in this case, appealed from the decree of the assistant vice chancellor, made in this cause. The complainant appealed from so much of the decree as declared the sale under the execution a valid, legal and proper sale; and also from that part of it, which declared that the assignee was entitled to retain, out of the proceeds of the sales of the wool and cloth, the amount bid by him at the sheriff’s sale, and that the complainant was only entitled to his proportion of the proceeds of the resale of the property appropriated for the payment of the debt of McKee and Slade, after deducting the amount of the trustee’s bid at the sheriff’s sale, as well as the manufacturer’s lien; and the complainants also appealed, because the trustee was not charged with the cloth at its full value at the time of the sheriff’s sale, but merely with the amount for which the trustee afterwards sold it. The defendant, the trustee, appealed from so much of the decree as gave to the complainant a part of the proceeds of the resale of the property on which the complainant claimed a lien, and from so much as directed the trustee to pay a part of such proceeds-to the complainant; and from so much thereof as directed the trustee to pay the complainant’s costs, and denied costs to the trustee as against the complainant.

      D. Gardner, for complainant.

      C. M. Jenkins, for defendant.
   The Chancellor.

This is a complicated transaction; and

I think the decree appealed from is right, with one exception. The vice chancellor is right in supposing that the sale was legal, and that the title to the property passed to the trustee under the. sheriff’s sale. The executions were in the sheriff’s hands before the execution of the assignment, and were therefore liens upon the property, as against a mere assignment for the payment of these and other debts; that is, the sheriff was bound to proceed and sell, under the executions, unless the judgment creditors chose to withdraw their executions and come in under the assignment. The general assignee for the benefit of creditors is not a bona fide purchaser within the meaning of the statute which protects the title of a bona fide purchase made before actual levy. (2 R. S. 365, § 17. Matter of Howe, 1 Paige’s Rep. 125.) It is not material whether all the executions were levied or not: For if the sheriff had levied one execution, and other executions were in his hands, or in the hands of his deputies, the levy would be valid as to all; so far as to entitle the others to the surplus, if any, raised at the sale under the execution upon which the levy was made and the property advertised and sold. And the purchaser at a sale under such executioñ, if he had been any other person than the trustee, would take the absolute title to the property, discharged of any equitable or legal lién acquired by the assignment; such assignment being overreached by the prior executions.

I am satisfied from the evidence, that the sheriff in fact intended to sell, and that he did actually sell the property, subject to the payment, by the purchaser, of the lien of Lawrence the manufacturer thereon. It was'not, however, sold or intended to be sold, subject to the payment of the whole amount due to McKie and Slade, absolutely. But the property was sold subject to their claim; that is, if they had a legal or equitable lien which was paramount to the title which the sheriff could give under the execution, then the purchaser was to take it subject to such Hen; and if not, he was to take it absolutely, notwithstanding the equitable lien they acquired under, the assignment, which lien was subordinate to the execution.

The assistant vice chancellor is right in supposing that the complainant and McKie had no lien upon the property, except what they derived under the assignment itself, which was subsequent to the lien of the executions; and that, under the assign-rnent, they had an equitable lien upon the proceeds of the sale, by the trustee, of this part of the assigned property. The schedules and the assignment must be all taken together, as one instrument. The assignment, among other things, conveys to the trustee the personal property referred to in schedule No. 2. A part of the property contained in that schedule was the cloth and wool in question, which was thus described and referred to therein: “A quantity of cloth, yarn and wool, in the woollen mill, now in the process of manufacture, my interest in which is the balance of the proceeds after payment of the expenses of manufacturing, and of the two notes of George McKie, and one of Israel Slade,, given for said wool, payable at Saratoga Bank, 5 July,' 1837; one to George McKie, for $1600; another to do. do., for $1587,08; another to Israel Slade-,- $810,32, payable 2 January, 1837.” And the schedule of debts to be first paid, after the payment of the debts due to Yan Rensselaer, directs payment out of the assigned property generally to “ George McKie and Israel Slade, for wool now in progress of manufaéture, so much, if any thing as shall remain due to them on their notes hereinafter mentioned, after applying the proceeds of the cloth, when manufactured from said wool, first to the payment of all expenses of manufaa-furing the same, and the residue, or so much thereof as may be necessary, to the payment of said notes.” Taking the assignment and these two schedules together, therefore, it is evident the assignor intended that the proceeds of the sales of the wool, yarn, &c. then in progress of manufacture, after the cloth should have been completed and sold, should be applied by the trustee to the payment of the debts of McKie and Slade, in preference to any other debts or claims whatever except for the expense Of man-ufactur ing. In other words, he intended to give them a specific lien upon the whole proceeds of the sale of such cloth, in preference to every other debt provided for in the assignment, or to any lien thereon except the lien or claim of the manufacturer. But as the legal title to the property was in Schuyler, the assignor, that title necessarily passed to Yan Tech ten, as trustee, under the assignment. And, if the lien of the prior executions had not existed, he would have been bound to sell the cloth and apply the whole proceeds, or so much thereof as might be necessary, to the debt of McKie and Slade, after paying Lawrence, the manufacturer, the amount of his claim out of such proceeds.

The assignment also expressly provided for the payment of the creditors who had acquired liens upon the real or personal property, before such assignment,- by judgment or execution and levy (except a judgment given to Yan Rensselaer, for#a specific object, which was then abandoned,) in preference to Yan Rens-selaer and the other general ’creditors. If the proceeds of the generally assigned property, therefore, were sufficient to discharge the liens which had been acquired by execution and levy upon this wool, yarn, and cloth, it was the duty of the trustee so to apply the same; so far as should be necessary to protect the liens and rights intended to be given to McKie and to Slade in the proceeds of the assignment. And if the trustee could not raise the funds to prevent a sale of the specifically appropiated property under the execution, and that property was in consequence thereof sold to a stanger, then the trustee was in equity bound to apply an amount of the proceeds of the generally assigned fund, equal to' the amount for which the specifically appropriated property was sold, to make good to them their loss • or so much of that amount as would be sufficient to pay their debts, if the specifically appropriated property was sold subject to the lien of the manufacturer, for more than the amount due upon the executions.

The trustee himself, however, bid in the specifically appropriated property, upon the executions, for less than its valúe, and thus extinguished the liens of the executions upon this part of the personal property assigned to him; the amount of which liens should have been first paid.out of the proceeds of the general trust fund, as being the primary fund for the payment of these prior liens by executions upon the personal property. The trustee, therefore, should take an equal amount of the proceeds of the furniture, or of other personal property not sold under the exe-' cutions, or of the trust fund generally which was applicable to the payment of these executions by the terms of the assignment, (and the amount, including the value of the real estate, appears to have been large,) to reimburse himself for the amount bid by him for the specifically appropriated property; and thus protect the interest of McKie and Slade therein, under the assignment. In other words, the assignment had provided a fund for the payment of execution creditors who had liens, which was amply sufficient; and which fund, as between McKie and Slade and the other creditors, was in equity the primary fund for the payment of the executions that were in the hands of the sheriff at the time of the assignment. The issuing and levy of the executions, however, also gave to the execution creditors a lien upon this specifically appropriated property, which was then in the progress of manufacture; which property, by the assignment, became in equity the secondary fund for the satisfaction of that lien. And the execution creditors having taken this part of the secondary fund, for their debts, McKie and Slade were entitled to be subrogated to the rights of the execution creditors against the primary fund; and to have an amount of that fund, equal to the amount of the bid by the trustee, applied to discharge his lien upon the secondary fund in consequence of the purchase of that fund by him.

The trustee, holding the legal title to this particular property, under the assignment, in trust to sell it and pay the debts of McKie and Slade out of the proceeds, he could not become a purchaser thereof at the sheriff’s sale, for his own benefit, and to their prejudice, at a price below its value. And even if there had not been another trust fund to reimburse the amount of such bid, McKie and Slade would be entitled to the net proceeds of the subsequent sale of the property thus bid in by the trustee; deducting therefrom the amount of his bid and the manufacturer’s lien. For a trustee who buys ip the trust property, under a prior incumbrance, and at a price below its real value, is always considered as doing it for the use or benefit of his cestui que trust. And McKie and Slade were the cestuis que trust as to this particular part of the assigned property, to the extent of their specific lien thereon under the-assignment.

To this extent the assistant vice chancellor has gone by his • decree. But he overlooked the fact that the trustee should have reimbursed himself out of the proceeds of the general trust fund, (which proceeds it appears he received upon the sale of other property,) for the amount of his bid for the property specifically appropriated to pay McKie and Slade’s debt, and that as trustee he was bound to apply the proceeds in that way.

So much of the decree as gives to the trustee a lien upon the proceeds of the sale of the cloth, for the amount of his bid at the sheriff’s sale, and as gives to the complainant only his rateable proportion of $1201,53, instead of his rateable proportion of the whole proceeds of the resale after deducting therefrom the $1273,56, for the manufacturer’s lien, must be reversed. And the decree must declare that the complainant was entitled to his rateable proportion of $1759,53, the amount for which the cloth was sold, by the trustee, over and above the amount paid by him to Ira Lawrence. ■ And the substituted trustee must by the decree be directed to pay to the complainant, out of the proceeds of the assigned property, the sum of $113,02, as the complainant’s rateable proportion, as between him and McKie, of the $558 bid at the sheriff’s sale, with interest on that amount from the 15th of Novémber, 1837; in addition to the amount decreed to be paid by the decree appealed from.

The decree of the court below was right as to costs. And the amount for which the property was sold by the trustee, and not the estimated value at the time of the sheriff’s sale, upon an ordinary credit, was the proper sum upon which the estimate of the complainant’s claim for payment should be based. For there is no proof that the resale was not made by the trustee in good faith, and upon the best terms he could obtain. The residue of the decree must therefore be affirmed. Neither party is to have costs, upon the appeal's, as against the other.


text:
    Vanderkemp and Van Hall vs. Shelton and others.
    Where H. conveyed a lot of land to li. and W., and took back a mortgage for the purchase money, which was duly recorded, and K. and W. sold and conveyed the premises to S. and S., who gave a 'mortgage thereon to K. one of the grantors,which the latter assigned to A. C. S., and that mortgage and the assignment thereof were duly recorded, and A. C. S. previous to May, 1836, assigned tha same mortgage to E., and guarantied the collection thereof, and H. subsequently foreclosed his mortgage in chancery, without making E,, the then owner of the second mortgage, a party to the foreclosure, and A. C. S. became the purchaser of the premises at the master’s sale under the decree; Held, that the sale to A. C. S. did not impair the rights of E. or his assignees, who were not parties to the foreclosure suit; and that A. C. S., by his purchase at the master’s sale, only obtained an interest in the mortgaged premises to the extent of the amount due upon the first mortgage, at the time of the sale to him, and the equity of redemption of S. and S. in the premises subject to the payment of the second mortgage.

      Held also, that as between A. C. S. and S. and S., the proceeds of the mortgaged premises beyond the amount due upon the first mortgage, was the primary fund for the payment of the amount due .upon the second mortgage, and should in equity be applied for that purpose, before resorting to the personal liability of S. and S. upon their bond.
    And A. C. S. having, subsequently to his purchase at the master’s sale, mortgaged the premises to the president of the Merchants’ Exchange Bank, in payment of-stock of such bank; and the officers of the bank having no actual notice of the assignment of such mortgage at the time of receiving the assignment of the second mortgage to E., made previous to the commencement of the foreclosure suit of H. j Held further, that the record of that assignment was constructive notice, to the subsequent mortgagees of A. C. S. that he was not the owner of the second mortgage at the time he purchased in the premises at the master’s sale, and that his title to the premises was not valid as against the assignees of that mortgage; they not being parties to the foreclosure suit.

      Held also, that as A. C. S. guarantied the payment of the second mortgage only in case S. and S. and their interest in the land were unable and insufficient to pay the same, he had an interest in keeping the right he had acquired, to the amount due upon the mortgage to H., distinct from his interest in the equity of redemption of S. and S. in the premises subject to the second mortgage; and that his interest in the first mortgage did not merge in his legal title as the owner of such equity of redemption; and that his mortgagees were entitled to the same rights which he acquired under the master’s deed, to the extent of the amount due upon their mortgage.
    And the assignees and owners of the second mortgage having filed a bill to foreclose their mortgage, and for a sale of the premises to satisfy the several liens and claims thereon according to equity; Held farther, that the complainants were entitled to a decree of foreclosure and sale; and that it was not necessary that they should first redeem the premises from the previous sale under the decree in the former suit -to which they were not parties; and that in distributing the proceeds of the sale, A. C. S., and those claiming under him as his mortgagees, should he first paid, out of the proceeds of the sale, the amount due upon the mortgage of H. at the date of the master’s deed, with interest thereon, after deducting therefrom the rents and profits of the premises from the time A. C. S. took possession under the master’s deed, and making an allowance for taxes, assessments and repairs, and for their costs. And that the complainants should then be paid the amount of their mortgage and costs; and that the residue of the proceeds, if any, should be paid to A. C. S. and his mortgagees, they being.entitled to the equity of redemption, under the master’s deed in the first foreclosure suit, and under the subsequent mortgage.
    Under the provisions of the revised statutes, the principles of the recording acts are extended to an assignment of a mortgage of an interest in real estate; and the record of such an assignment is constructive notice thereof to all subsequent assignees of the mortgage who purchase the mortgage from the assignors. And unless such assignment is recorded, it will be invalid as against a subsequent as-signee or purchaser of the mortgage, in good faith and without notice, whose assignment shall be first duly recorded.
    Where a second mortgage is assigned, and the assignment is not recorded, and the mortgagee in the. first mortgage makes the mortgagee in the second mortgage a party to his bill of foreclosure, but does not make the assignee a party, a bona fide purchaser at the master’s sale, or a subsequent purchaser under him, who has no notice of such assignment at the time of his purchase, will be protected against the claim of the assignee under such unrecorded assignment. But if the assignment is recorded, and the assignee is not made a party to the foreclosure suit, the record of the assignment will be constructive notice to the purchaser at the master’s sale, and to all persons claiming under him, of the right of such assignee; and that such assignment is not affected by the sale under the decree.
    A purchaser of mortgaged premises, at a sheriff’s sale under a junior judgment, or at a master’s sale under a decree in a suit to foreclose a junior mortgage, in which the owner of the first mortgage is not á party, only acquires title to the equity of redemption in the mortgaged premises; and is only supposed to bid to the value of that equity, subject to the payment of the prior mortgage thereon. He cannot, ■therefore after such purchase, take an assignment of such prior mortgage, and charge the mortgagor with the amount of such mortgage, by a suit upon his bond; before he has exhausted his remedy by a resort to the mortgaged premises; as the primary fund for the payment of the mortgage debt.
    And where the mortgagor is compelled to pay the prior mortgage, after such a sale under a subsequent judgment or mortgage, he will in equity be subrogated to the rights of the first mortgagee, and will have the right to an assignment of such prior bond and mortgage, to enable him to reimburse himself from the fund in the hands of such purchaser of the mortgaged premises.
    A junior mortgagee may file a bill to foreclose his mortgage and for a sale of the mortgaged premises, and for the payment of all incumbrances thereon out of the proceeds of the sale. And by the practice in this state he may make the prior mortgagee a party to the suit, without offering to redeem and pay the prior mortgage.

      And where the*prior mortgagee is made a party to such a suit, if he is in possession under his mortgage, he'can only ask that he shall not be unnecessarily subjected • to costs, where the proceeds of the sale of the premises will not prohably be sufficient to pay his deht and costs.
    This was an appeal, by the defendants, A. C. Stevens, and Sherman Stevens, president of the Merchants’ Exchange Bank of Buffalo, from an order of the vice chancellor of the eighth circuit. On the 13th of October, 1835, J. D, Hoyt conveyed lot No. 96 of the state survey, of the mile strip reservation in the town of Buffalo, containing about 300 acres, to Kingman and Welty; and he took back from them a mortgage, of $7500, to secure the payment of the purchase money. On the same day, Kingman and Welty conveyed the premises to the defendants Smith and Shelton. And these grantees, on the same day, gave back to Kingman a bond and mortgage, to secure the payment of $5220, in ten yearly payments, with annual interest. King-man assigned that bond and mortgage to A. C. Stevens, one of the appellants, on the 19th of December, 1835; and the mortgage and assignment were duly recorded together, on the 21st of the same month. In February, 1836, A. C. Stevens assigned the bond and mortgage to David E. Evans, by an assignment endorsed upon the original mortgage, and guarantied the collection thereof when the same should become due and payable. This assignment was recorded in the, book of mortgages, in May, 1836, by recording the assignment endorsed upon the mortgage merely, and by referring to the book and pagein the records where the original mortgage and the assignment thereof to A. C. Stevens were recorded. And in August, 1837, Evans assigned the bond and mortgage to the complainants; which last mentioned assignment was also duly recorded, two days after the execution thereof.
    In November, 1836, Hoyt filed a bill in chancery to foreclose his mortgage, against Kingman and Welty, the mortgagors; and Shelton and Smith, their grantees, were also made defendants. But neither A. C. Stevens, the original assignee of the bond and mortgage given by Shelton and Smith to Kingman, nor Evans, who then held that bond and mortgage under the assignment to him of February, 1836, were made parties to the suit. In November, 1837, Hoyt obtained a decree of foreclosure in that suit; and the mortgaged premises were sold by the master, under such decree, in February, 1838, and were purchased by A. C. Stevens for $8945. The master’s deed was duly recorded in March, 1838. On the 5th of May thereafter, A. C. Stevens mortgaged the premises to Kissam, to secure the payment of $8000 in eight years, with annual interest; , and Kissam assigned this mortgage to the appellant Sherman Stevens, as the president of the Merchants’ Exchange Bank of Buffalo, in November, 1838. And in December, 1838, A. C. Stevens gave another bond and mortgage upon the premises to Sherman Stevens, as such president of the said bank to secure the payment of the sum of $2000 and interest. The consideration of the last mentioned mortgage and of the assignment of the $8000 mortgage from Kissam, was scrip issued to A. C. Stevens the mortgagor, for $10,000 of the capital stock of the banking association. The officers of the association, at the time they issued the scrip and received the mortgages in payment of such stock, supposed that the title of A. C. Stevens to the premises was perfect, under the master’s deed upon the sale in Hoyt’s foreclosure suit. And they had no actual notice that he had assigned the mortgage of Shelton and Smith to any person.'
    The complainants filed their bill, in this cause, in May, 1839, as the assignees of-the bond and mortgage given by Shelton and Smith to Kingman, to obtain satisfaction of the second and third instalments of principal and interest which had then become due thereon and remained unpaid. The bill was taken as confessed against the mortgagors and the other defendants therein, except A. C. Stevens and the president of the Merchants’ Exchange Bank of Buffalo. And as to the two last named defendants the cause was heard before the vice chancellor, upon pleadings and proofs. The vice chancellor decided the cause in substance, against the appellants; but supposing that he had no power to make such a decree as would be equitable between them and Shelton and Smith, the mortgagors, he made an order that the proceedings in this cause be suspended until the complainants should have exhausted their remedy at law against Shelton and Smith, upon their bond accompanying the mortgage to Kingman. (See 1 Clark's Rep. 321.)

      E. F. Smith, for the appellants.
    The guaranty of A. C. Stevens was a guaranty of collection, and not of payment. No right of action or claim exists against him until the complainants have exhausted their remedy at law against Shelton and Smith.' (1 Wend. 457. 19 John. G9. 13 Wend. 534. Evan's Path, on Oblig. 218, pt. 2, ch. 3, art. 1, § 5, Phil. ed. 1820.) A person promises to pay upon a certain condition, and pays by mistake before the condition is accomplished, the payment may be reclaimed. (Evan's Poth. 230, pt. 2, ch. 3, art. 3, § 2. Com. Dig. tit. Conditions, D, 1. Ibid, tit. Assumpsit. Ughtred’s case, 7 Coke, 9. Fonbl. 400. 19 John. 71. 6 Cowen, 624.) The assignment with guaranty, by A. C. Stevens, was not a new mortgage, it was a mere transfer or making over unto Evans the whole interest or estate which the assignee had at the time of the assignment. The title subsequently acquired by A. C. Stevens did not enure to confirm the mortgage assigned to Evans. Subsequently acquired interests only enure to the benefit of a prior grantee when there is an existing obligation to have it so enure. Stevens, when the bill was filed, was under no obligation to discharge or remove the prior charge, or to protect the title of Shelton and Smith against adverse claims. The lien of the bank was prior in point of time to that of complainants, and cannot be divested by any liability of A. C. Stevens, which accrued subsequently to the execution of the*' mortgage of the former. The eifect of the foreclosure of the Hoyt mortgage, without making Evans a party, leaves the complainants’ right to a lien on the land and their equity of redemption in the mortgaged premises unimpaired. As the Merchants’ Exchange Bank do not derive title from Shelton and Smith, there is no equity of redemption in the bank to be foreclosed in this suit. The record of the assignment to Evans was not constructive notice to the bank, and the proofs show that the bank had no actual notice. The bank is a bona fide incumbrancer without notice, and its lien will be protected.

      E. Norton, for the respondents.
    Sherman Stevens had notice of the claim of the complainants, and he took his‘mortgages subject to the equities existing between the complainants and A. C. Stevens. The assignment from A. C. Stevens to Evans, with-guaranty, was a mortgage of the premises by Stevens, and was prior to the mortgages of Sherman Stevens. The title subsequently acquired by A. C. Stevens, enured to confirm the mortgage assigned to Evans. A. C. Stevens and those claiming under him are estopped by his assignment, and also by his guaranty from disputing the complainants’ claim. If the complainants are bound to exhaust their remedy on the bond before proceeding against the land, it may be done in this suit; and if not, this bill will not be dismissed, but proceedings on it will be suspended until the remedy is exhausted at law.
   The Chancellor.

The sale under the decree, in the foreclosure suit, brought by Hoyt upon the first mortgage, was wholly inoperative as to the rights of the assignees of the bond and mortgage executed by Shelton and Smith, which assignees were not parties to that suit. The only right therefore, which A. C. .Stevens acquired under that sale, as against such assignees, was the right to the prior lien upon the premises to the extent of the money due and unpaid upon Hoyt’s mortgage; in the same manner as if Hoyt had assigned that mortgage to him without foreclosure. But as against Shelton and Smith, who were defendants in that suif,*he acquired the equity of redemption which remained in them previous to the master’s sale. And it may be important to ascertain what the equity of redemption thus acquired wasfor the purpose of determining the question, whether the second mortgage ought in equity to be paid out of the surplus proceeds' of a sale of the mortgaged- premises, after satisfying the Hoyt mortgage, or by Shelton and Smith.

So far as the rights of A. C. Stevens are concerned, no question whatever arises as to constructive notice of the assignment of the second mortgage. At the time he purchased,', at the master’s sale, he well knew that the second mortgage was not held by Kingman, one of the defendants in that suit, and that the person who owned that mortgage at the time the foreclosure suit was commenced was not a party. For he had himself previously assigned that mortgage to Evans; and the fact that Evans was not a party to the. foreclosure suit appeared upon the face of the decree under which A. C. Stevens purchased. The equity of redemption in the mortgaged premises which remained in Shelton and Smith, previous to the master’s sale, was the right to the surplus value of such premises, after satisfying not merely the first mortgage to Hoyt, but also the second mortgage which then’ belonged to the complainants in this suit. If A. G. Stevens had purchased that equity of redemption under a judgment, against Shelton and Smith, which was subsequent in time to both mortgages, he certainly could not have afterwards taken assignments of the bonds and mortgages and resorted to the personal liability of the mortgagors, upon their respective bonds, before he had exhausted his remedy against the land itself for the payment_ of those debts. And if the mortgagors were compelled to pay the amount of their bonds to any other persons, as the owners of such bonds and mortgages, the mortgagors would, in equity, be entitled to an assignment of the bonds and mortgages to enable them to compel the purchaser of the. equity of redemption to refund the amount, to have it charged on the land upon which such mortgages were liens. (Tice v. Annin, 2 John. Ch. Rep. 128. Heyer v. Pruyn, 7 Paige's Rep. 470.) The legal presumption in such cases is, that the purchaser of a mere equity of redemption only bids to the value of such eqiñty of redemption beyond the amount of the previous specific lien upon the premises. It would therefore be clearly unjust and inequitable to permit him to keep the land, at the price thus bid, and to resort to the personal liability of the mortgagor to satisfy the amount of such specificlien. ,_

So in this case; A. C. Stevens, when he purchased at the master’s sale, knew there-was an outstanding mortgage upon the equity of redemption, and that the purchaser at such sale would only acquire an interest in the premises to the extent of the amount then due upon Hoyt’s mortgage, and the right to the equity of redemption, upon paying the amount due upon the second mortgage which was a specific lien on the premises. And if he had subsequently taken an assignment of the second bond' and mortgage, he could not, in equity, have been permitted to resort to the personal liability of the mortgagors, in the first instance, without giving' them the benefit of the specific lien upon the land after satisfying the amount due upon the first mortgage. The case is entirely different where the several incumbrancers, having liens upon the equity of redemption, are all made parties to the foreclosure suit; so as to give to the purchaser under the decree a perfect title, discharged of all equity of redemption in their favor. ■In that case the legal presumption is that the purchaser gives the full value of the property; and the whole proceeds of the sale áre applied to the payment of the incumbrances in the order of their priorities. Whatever remains unpaid, therefore, after thus applying the proceed^ of such sale, is properly chargeable against the mortgagors personally. Even if A. C. Stevens had not guarantied the collection of the bond and mortgage assigned to Evans, I think, as between him and Shelton and Smith, the value of the premises beyond what was due upon the Hoyt mortgage was the primary fund, in equity, for the payment of the mortgage which at the time of such sale belonged to the complainants, and which was in no way barred or affected by such sale.. Independent of the guaranty, therefore, if the subsequent mortgages to Kissam, and to Sherman Stevens as president of the banking association, had not been given, the complainants would have been entitled to a decree for the sale of the mortgaged premises; with directions to the master to apply the net proceeds of such sale as follows: First, to pay to A. C. Stevens, the amount due upon the mortgage to Hoyt, and the interest thereon, and also to pay to him, as the owner of the first incumbrance, his costs in this suit. Secondly, to pay to the complainants out of the proceeds of the sale, as the owners of the second lien upon the premises, the amount of their debt and costs, or so much thereof as the residue of the proceeds of the sale would pay of the same. Thirdly, to pay the surplus proceeds of the sale, if any, to A. C. Stevens as the owner of the equity of redemption, by virtue of his purchase under the previous decree to which the owners of the second mortgage were not parties. The, decree which would have been proper, in the case supposed, should also have provided that if the proceeds of the sale were not sufficient to pay the amount of the debt and costs due to the complainants, after paying the costs and expenses of the sale and the amount due to A. C. Stevens for his debt and costs, as before directed, the master should specify the amount of the deficiency in his report; and that Shelton and Smith, the mortgagors in the second mortgage, pay to the complainants the amount of such deficiency with interest.

What, then, is the effect of the guaranty contained in the assignment of the bond and mortgage to Evans? That guaranty was that Evans, or his assignees, should be able to collect the several instalments upon that bond and mortgage which were then unpaid, from time to time as they became due, together with the interest thereon ; either from the proceeds of the mortgaged premises or from the mortgagors or their other property. It could not, therefore, have been the intention of the parties, in case the mortgagedju-emises were insufficient to pay the -whole of this debt, in addition to the previous incumbrance thereon, that the assignee should be at liberty immediately to resort to the guarantor, after exhausting his remedy against the land, subject to the prior lien. Nor can the guaranty be considered as a covenant that the land itself should actually produce sufficient to pay the second mortgage; so as to enable the assignee to take the benefit -of the prior mortgage, which the assignor acquired under the mastér’s sale, to satisfy the amount due upon such junior mortgage, instead of resorting to the personal liability of Shelton and Smith for the deficiency. The only alteration, therefore, which would have been proper in the decree above suggested, on account of this guaranty, if A. C. Stevens had not executed the subsequent mortgages, would have been a further direction, that upon the return of an execution against Shelton and Smith unsatisfied, A.. C. Stevens, as such guarantor, should pay to the complainants so much of the deficiency as remained uncollected from time to time, when it should become due and payable according to the terms of the assigned bond and mortgage.

The purchase at the master’s sale by A; C. Stevens, therefore, did not merge the first mortgage, in the equity of redemption which he also acquired by the same purchase. For the intermediate mortgage which was not foreclosed, and the interest of the purchaser to keep the first mortgage and the equity of redemption separate and distinct, so as to compel the complainants to resort to the personal liability of Shelton and Smith, in thefirst place, for any deficiency there might be after paying the first mortgage, would prevent the merger. (Crow v. Tinsley, 6 Dana's R. 402.)

Upon examining the provisions of the revised statutes, I think there is very little doubt that the vice chancellor is right as to the effect of the recording of the assignments of the mortgage to Kingman, as constructive notice to Kissam, and to the banking association, as mortgagees of the premises after the sale by the master. Previous to the revised statutes it had been decided, by the court for the correction of errors, in the case of James v. Morey, (2 Cow. Rep. 246,) that actual notice of the assignment of a mortgage was necessary to invalidate payments subsequently made to the assignor, by the mortgagor or his representatives. But it was also decided, in that case, that the recording acts did not apply to the assignment of a mortgage; and that no notice of the assignment, either actual or constructive, was necessary to protect the assignee of the mortgage against a subsequent assignee, or against other persons claiming under the assignor. In other words, that as between the assignee of a mortgage and subsequent assignees or purchasers from the assignor thereof, the rights of the parties depended upon the rule of law as it existed previous to the recording acts. That rule was that the first grantee, or assignee, of an interest in real estate, was entitled to a preference, whether the subsequent assignee, or purchaser, had or had not notice of the prior assignment or grant. The revised statutes, however, extended the beneficial provisions of the recording acts to the case of the assignment of a mortgage; by declaring that the term purchaser, as used in the chapter of the revised statutes relative to the proof and recording of conveyances of real estate, &c. should be construed to embrace every person to whom any estate or interest in real estate should be conveyed for a valuable consideration, and also to embrace every assignee of a mortgage, or lease, or other conditional estate; and that the term conveyance, as there used, should be construed to embrace every instrument in writing by which any estate, or interest., in real estate-was created, aliened, mortgaged or assigned, or by which the title to any real estate might be affected in law or equity, with two or three specified exceptions. (1 R. S. 762, § 37, 38.) And to show that the intention was to include assignments of mortgages within the general provisions of that chapter, requiring such conveyances to be recorded in order to make them constructive notice, it is only necessary to refer to the note of the revisers to the 41st section; where they say distinctly that assignments of mortgages will be included in the term conveyance as previously defined.

What notice, then, would the mortgagees of A. C. Stevens have had of the legal and equitable rights of the complainants, if they had searched the records at the time of taking their respective mortgages, in 1838; for the purpose of ascertaining what title he obtained under the master’s deed? They would have found that Hoyt’s mortgagors had conveyed to Shelton and Smith, who had afterwards mortgaged the premises to Kingman, who was one of the parties to the foreclosure suit. And if the assignment from him to A. C. Stevens had not been upon record, they would have been authorized to presume that Kingman was still the owner of the mortgage given to him by Shelton and Smith; and that his interest in the premises as such mortgagee had been foreclosed by a decree to which he was a party. Although A. C. Stevens, the purchaser, who had actual notice of the several assignments by which Evans became the owner of that mortgage before the commencement of the foreclosure suit, would not have been protected against the lien of that mortgage in the case supposed, yet his subsequent mortgagees, who had advanced their money and scrip upon the faith of the security upon the land, and without any notice, either actual or constructive, of the rights of the complainants, would have been protected against this intermediate incumbrance which had not in fact been foreclosed. But they were bound to look further than the mere record of 'the mortgage to Kingman, to see whether he was still the owner of that mortgage at the time of the commencement of the foreclosure suit of Hoyt, and of the filing of the notice of lis pendens. And if they had done so they w'ould have ascertained the fact that the second mortgage did not belong to a party to the foreclosure suit; and that the only interest A. C. Stevens had in the premises which was paramount to that incumbrance, was the interest which the complainant in the suit had, at the time of the sale under the decree, as the owner of the first mortgage. They, cannot, therefore, be considered as bona fide mortgagees, as against the complainants as the owners of the second lien upon the mortgaged premises, beyond the amount actually due upon the mortgage to Hoyt.

The order appealed from was clearly erroneous, in directing that the proceedings in this suit should be suspended until the complainants should have exhausted their remedy at law upon the bond of Shelton and Smith. And although the appellants were not entitled to have the bill dismissed, they are entitled to have the proper decree made, without further delay, to ascertain the rights of the several parties, in order that the mortgaged premises may be sold and the proceeds thereof applied accordingly. The complainants’ bill is properly framed for that purpose; as this is a bill for a foreclosure and sale of the equity of redemption in the mortgaged premises, to satisfy the several incumbrances thereon according to their respective priorities, and is not a mere bill to redeem. In England, the court does not decree a sale of mortgaged premises, but merely allows the second incumbrancer to,file a bill to redeem from the first incumbrance, and that the junior incumbrancers may redeem both of the prior ones, or be foreclosed. And the complainant there, is in all cases, required to offer to redeem the first incumbrance. But here, where the puisne creditor has the right to a sale of the estate to satisfy his debt, after applying so much of the proceeds of the sale as may be necessary to pay the debt and costs of the prior incumbrancer, he is not required to offer to pay the first incumbrance. All that the prior incumbrancer has a right to ask, even where he is in possession under his incumbrance, is that he shall not be subjected to useless costs, when the proceeds of the sale will not probably be sufficient to pay the amount of his debt, with interest, and the costs of foreclosure.

The order appealed from must therefore be reversed. And a decretal order must be entered referring it to one of the masters of this court to compute and ascertain the amount due to the complainants upon their bond and mortgage; stating the amount due and payable, and the amount to become due hereafter, with interest thereon to the date of his report. The master must also compute the amount due to the defendant A. C. Stevens as the purchaser of the interest of Hoyt in the mortgage executed by Kingman and Welty to him; and in ascertaining that amount he must credit A. C. Stevens with the amount remaining unpaid at the time of the decree of foreclosure in the suit of Hoyt, and the subsequent interest, and must charge him with the rents and profits of the mortgaged premises from the time he took possession thereof under the master’s deed, after deducting taxes, assessments, and repairs. (7 Dana’s Rep. 70. Lloyd & Goold’s Rep. Temp. Sugden, 246. 2 Sum. Rep. 143.) The decree must also direct the master to ascertain and compute the amount due and to become due, for principal and interest, on the mortgage given by A. C. Stevens to Kissam, and also upon the one given to Sherman Stevens as president of the Merchants’ Exchange Bank of Buffalo; and to ascertain who is the holder or owner of those mortgages. The decree must then direct that upon the coming in and confirmation of the master’s report, the mortgaged premises be sold, by a master, in the usual form. And out of the net proceeds of the sale the master must pay the amount reported due to the defendant A. C. Stevens, as follows : first, to the holder of the mortgage given to Kissam, so much as may be reported due upon that mortgage, if the sum reported due to A. C. Stevens as the purchaser, of the interest of Hoyt, is sufficient for that purpose; secondly, to the holder of the mortgage to Sherman Stevens as president, the amount reported due thereon, if the amount due to A. C. Stevens is sufficient for that purpose; and thirdly, to A. C. Stevens the balance, if any, of the amount reported due to him. Out of the proceeds of the sale the master must next pay to the solicitor of the defendant Sherman Stevens, as president of the banking association, his costs of this suit to be taxed; not including, however, any costs upon this appeal. And out of the proceeds of the sale, he must next pay the amount reported due to the complainants, together with their costs in this suit to be taxed, exclusive of their costs upon this appeal. If any thing 'remains of such proceeds, he must then pay the balance, if any, which remains unpaid to the holders of the Kissam and Sherman Stevens mortgages. respectively; and must pay the residue of such proceeds to A. C. Stevens, or his solicitor, as the owner of the equity of redemption in the mortgaged premises. The decree will also direct that if the proceeds of the sale shall not be sufficient, in the order of payment herein directed, to pay and satisfy the amount due to the complainants with interest and costs, that the master specify the amount of such deficiency in his report; stating therein the amount of such deficiency which has then become due and payable, and the amount which is thereafter to. become due, separately; and that the defendants Shelton and Smith pay such deficiency as shall then have become due, together with the interest thereon from the date of the master’s report of the sale, immediately, and that the complainants have execution therefor. The decree must further direct that upon the return of the execution against Shelton and Smith, for such deficiency, unsatisfied, the defendant A. C. Stevens, as the guarantor of the collection of the bond and mortgage of Shelton and Smith, pay to the complainants the amount of the deficiency, then due and páyáble, which shall remain uncollected, and that they have execution therefor against him. And as to the amount of such deficiency which shall not have become due and payable at the date of the master’s report of the sale, the complainants must have liberty to apply for further directions, for the payment thereof by Shelton and Smith, or by A. C. Stevens, as shall be equitable and just, after the saíne shall have become due and payable.


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    Coe and Gerry vs. Whitbeck.
    Where a debt is due to a copartnership at the time of the bankruptcy of one of the individual members of the firm, the legal title to the share of the debt belonging to the bankrupt partner is vested in his assignee, by operation of law; and an action at law to recover the debt must be brought in the joint names of the other copart, ners and of the assignee in bankruptcy.
    But the solvent partners have the right to bring such suit, in the joint names of themselves and of such assignee, without the consent of the latter, upon giving him an indemnity against costs.
    In chancery, the assignee of the bankrupt copartner is a necessary party, to a bill filed to recover a debt due to the firm at the time of the bankruptcy, where such assignee takes a beneficial interest in the partnership effects, as a trustee for the separate creditors of the bankrupt copartner, under the proceedings in bankruptcy.
    But where the bankrupt has been discharged from his debts, and it distinctly appears that the copartnership is insolvent, and that the assignee in bankruptcy has therefore no interest in the effects of the firm, and that the solvent partners must of necessity apply the whole copartnership property to the payment of the partnership debts, and make up the deficiency of such debts out of their individual property, it is not necessary that the assignee should be a party to a bill in chancery to recover a demand due to the firm.
    A creditor’s bill cannot be sustained upon the return unsatisfied of an execution, issued out of a justice’s court, against the personal property of the defendant only; and the return unsatisfied, of an execution issued upon a judgment of a court of record, a short time before the recovery of the judgment before the justice, is not sufficient evidence that the defendant has no real estate out of which the last judgment can be levied. *
    Whether a creditor’s bill can be founded upon the return unsatisfied of an execution issued out of a justice’s court, against the defendant’s personal property only, where there is a distinct averment in the bill that the defendant had not at the timfe of the filing of such bill, nor at the,, time of the issuing of the execution, any* real estate or chattels real whatever: Qucere ?
    ■ This was an appeal from an order of the vice chancellor of the éighth circuit, for the appointment of a receiver upon a' creditor’s bill; and from-another order denying the defendant’s application to dissolve the injunction which had been allowed upon the filing of the bill. The complainants stated, in their bill, the recovery of a judgment in the supreme court, in October, 1842, for $83,12, in favor of themselves and J. Wells, as copartners,' for a debt due tó , their copartnership firm of Coe, Wells & Co., that upon such judgment an execution was issued to the sheriff of the county of Livingston, where the defendant resided, on the 2d of December, 1842, returnable in sixty days, and that such execution was subsequently returned unsatisfied. The complainants also-stated the recovery of another judgment against the defendant, in favor of D. Friman, before a justice of the peace, for $33,55; that upon this judgment an execution was issued to a constable of the county where the defendant resided, on the 4th of October, 1843, returnable in ninety days; and that such execution was also returned unsatisfied; and that this last mentioned judgment was afterwards assigned by Friman to the complainants. The bill also stated that at the time of the recovery of the judgment of $83,12, the firm of Coe, Wells &• Co. was insolvent, and that' Wells, one of plaintiffs in such judgment, was afterwards discharged under the bankrupt act.
    O. Meads, for the appellant.

      J. L. Wendell, for the respondents.
   The Chancellor.

This case must be decided upon the facts stated in the original bill, on which the orders appealed from were based. I cannot therefore notice the fact, subsequently stated by way of amendment to the bill, that the bankrupt had assigned his interest in the judgment, recovered in the names of himself and of the complainants, previous to the institution of the proceedings for his discharge under the bankrupt act. For the purpose of ascertaining whether the decisions of the vice chancellor were correct, therefore, it must be .taken as an admitted fact that the judgment belonged to thé partnership at the time the decree in bankruptcy was pronounced; and that the beneficial interest of the bankrupt, in that debt, if any such he had, belongs to his assignee in bankruptcy. The question first to be considered then is, whether the assignee in bankruptcy was a necessary party to the suit, in this court, to reach the property of the defendant and have it applied in satisfaction of that .judgment.

Where a debt is due to a copartnership at the time of the bankruptcy of one of the individual members of the firm, an action at law to recover the debt must be brought in the joint names of the solvent copartners and of the assignee of the bankrupt; as the legal title to the debt is vested in them jointly, by operation of law. (2 Walf. on Parties, 299.) But the solvent partners have the right to bring the action in the names of themselves and the assignees of the bankrupt, without the consent of such assignees, upon giving them an indemnity against costs. (Broom on Part. 65. Whitehead v. Hughes, 2 Cromp. & Mees. Rep. 318.) And in this court I think the assignee of the bankrupt copartner is a^necessary party to a suit brought to recover a debt due to the firm at the time of his bankruptcy ; where such assignee takes a beneficial interest in the partner•ship effect®) as a trustee for the separate creditors of the bankrupt copartner under the proceedings in bankruptcy. But where the bankrupt is discharged froqi his debts, and it distinctly appears that the copartñeíship is insolvent, so that the assignee in bankruptcy has no interest in the effects of the firm, but the solvent partners must necessarily apply the whole of the copartnership property to the payment Of the debts of the firm, and make up the deficiency of those debts out of their individual property, and where that fact is distinctly stated in the bill, I can see no good reason for making the assignee of the bankrupt partner a party to a suit in this court to obtain payment of a debt due to the firm.

The objection, however, that the amount of the judgment in the supreme court is not sufficient to give the court of chancery jurisdiction, and that the complainants have not exhausted their remedy at law as to the justice’s judgment, appears to have been well taken. The vice chancellor considers the fact that the execution upon the judgment in the supreme court, which was issued against the real as well as the personal estate of the defendant, had been returned unsatisfied, as equivalent to an allegation in the complainant’s bill that the defendant had no real estate which could be reached by execution, at the time such bill was filed. But he has overlooked the fact that the execution upon the judgment in the supreme court was returnable •as early as the fiist of February, 1843, five month's previous to the recovery of the judgment before the justice, and eleven months before the return day of the execution issued upon that .judgment against the defendant’s personal property merely. The returns upon both executions, therefore, may be perfectly true, and yet the defendant may have acquired real estate sufficient to have satisfied the justice’s judgment after the-return day of the execution issued out of the supreme court 5 and which could not, for that reason, be sold by the sheriff.

Where a judgment is recovered in a justice’s court, and the defendanfihas no real estate whatever, the filing of a transcript in the office of the county clerk for the purpose of obtaining an execution against real as well as personal estate might perhaps be considered as an useless expense. But to entitle the plaintiff in the judgment to file a creditor’s bill, upon the return of an execution which has been issued against the personal estate merely,' unsatisfied, there should at least be a distinct averment in the bill, that the defendant had not, either at the time of the issuing of such execution, or at the time of filing the bill, any real estate or chattels real which could have been reached ^and sold upon execution, if the judgment had been entered and docketed in the county clerk’s office, and an execution issued thereon against both real and personal property of the defendant.

The orders appealed from must therefore be reversed. The motion to dissolve the injunction must be granted, and the motion to appoint a receiver must be denied with $ 10 costs; but without prejudice to the right of the complainants to apply to renew the injunction and to appoint a receiver, upon a new, or an amended bill.


text:
    Hopper vs. Hopper.
    In an answer to a bill for a separation from bed and board, on the ground of cruel treatment, the defendant, although he denies the charge in the complainant’s bill, may set up recriminatory charges of miscbnduet on the part of the complainant.
    The defendant in a suit in Chancery may, in his answer, set ilp as many defences as he thinks proper; although he cannot do so hy plea. But in a sworn answer he cannot set up two distinct matters, which are so inconsistent with each other that it is impossible that both of them can be true.
    The defendant may deny the allegations upon which the complainant’s claim to relief is based, and may at the same time set up, in his ansvimr, any other matters, not wholly inconsistent with such denial; as a distinct Or separate defence to the suit or to some part of the relief claimed by the bill.
    In a suit by the wife for a separation, on account of alleged cruel treatment, it is important that the court should know what has been her conduct towards the defendant, to enable it to decide whether the case is a proper one for a decree of separation. And it seems that the defendant may, in his answer, show any misconduct on her part which was calculated to irritate and provoke him, excite his jealousy, or alienate his affections from her, without thereby rendering his answer impertinent.
    In an answer to a bill by the wife, for a separation, nothing will be considered as impertinent, which in any event will be material to the defendant, either as an absolute defence to the suit, or in relation to life question of costs, or the amount of alimony to be allowed, if the complainant Succeeds in obtaining a decree for a separation.
    This was an appeal from á decision of the vice chancellor of the first circuit, disallowing six of the defendant’s exceptions to a master’s report upon exceptions to the answer. The bill Was filed by the complainant against her husband for a decree of separation from bed and board. The answer of the defendant denied that he had been guilty of the cruel treatment alleged in the bill, or of using any violence towards the complainant, unless it was during the time he was deprived of his reason, for about a week, by an inflammation of the brain. The defendant, in his answer, also charged various acts of misconduct on the part of the complainant, which formed the subject cif the six last exceptions to the answer for impertinence. The vice chancellor decided that as the defendant had, by his answer, denied every allegation of cruelty, ill treatment and misconduct on his part, which was charged in the bill, there was nothing for him to justify, palliate or explain in his own conduct towards his wife, and that the charges made by him of misconduct on her part were useless and impertinent. He therefore disallowed the six last exceptions to the master’s report, and sustained the corresponding exceptions to the answer. From this part of the decision of the vice chancellor the defendant appealed.

      M. T. Reynolds, for the appellant.

      J Rhoades, for the respondent.
   The Chancellor.

If the respondent’s denial that he had been guilty of any of the acts of improper and cruel treatment of his wife charged in the bill was, for all purposes, to be conclusive evidence that all the allegations in the bill on that subject were false and unfounded, the charges of misconduct on the part of the complainant would unquestionably be impertinent as well as useless. But a defendant in this court, in an answer, is at liberty to set up as many defences as he pleases. The different parts of his answer, therefore, are not to be construed in the same manner as the different parts of a plea would be in this court, or even in a court of law. Thus in the case of a bill filed for a divorce on the ground of adultery, a recriminatory charge on the part of the defendant would be entirely useless and impertinent, if the denial of the adultery charged in the bill was not subject to be displaced, as a defence, by the testimony in the cause. Yet, in a case of that kind, it has been decided that where a defendant in his answer denies upon oath that he has been guilty of the adultery charged in the complainant’s bill, he may in the same answer set up' the adultery of the complainant, as a defence to the sni.t; or any other matter which will be pertinent if the complainant should succeed in proving the allegations contained in the bill. (Wood v. Wood, 2 Paige’s Rep. 108. Dillon v. Dillon, 3 Curt. Eccl. Rep. 30.)

Where the defendant is required to swear to the truth of his answer,- or at least to his belief of its truth, he cannot set up two distinct defences therein which are so inconsistent with each other that if the matters constituting one defence are truly sta-; ted, the matters upon which the other defence is attempted to be based must necessarily be untrue in point of fact. But the defendant may deny the allegations upon which the complainant’s title to relief is founded, and may at the same time set up, in his answer, any other matters, not wholly inconsistent with such denial, as a distinct or separate defence to the claim for relief made by the bill, or to some part thereof.

Here the allegations in the answer, as to the improper intimacy of the wife with another person, with whom she knew her husband was not upon friendly terms, and other conduct calculated to irritate and provoke the husband to acts of violence and unkind treatment, are not inconsistent with his denial that any acts of violence or of cruel treatment on his part have ever taken place. And it is not for the complainant, who has charged her husband with cruel and inhuman conduct towards her, to say it is not necessary for him to set up misconduct on her part which tended to irritate and provoke him to acts of violence. In this stage of the suit it is impossible for the court to say which party has sworn false in relation to the charges in the bill. I cannot, therefore, say there is no necessity for the defendant to set up recriminatory charges in his answer; to enable him to go into proof thereof, in case the complainant should succeed in establishing the allegations in the bill. And if the matters excepted to as impertinent can in any event be material to the defendant, either as an absolute defence to the suit, or in relation to the question of costs, or to the amount of alimony which the complainant should receive in case she succeeds in obtaining a decree for separation, these exceptions to [he answer should not have been allowed.

In cases of this kind it is important for the court to know what has been the conduct of the wife towards the husband, as well as what his conduct has been towards her, in deciding the question whether it is a proper case for a decree of separation. I am not, therefore, prepared to say that misconduct on her part which was calculated to irritate and provoke him, or to excite his jealousy, or to alienate his affections from her, should be considered as useless and impertinent, in an answer to a bill which charges cruelty on his part.

For these reasons the order appealed from must be reversed; and the exceptions to the master’s report disallowed by the vice chancellor must be allowed; and all the exceptions to the answer must be overruled. The costs of the defendant upon the reference, and upon the exceptions to the report, and also his costs upon this appeal, must abide the event of the suit.


text:
    Smith and others, executors, &c. vs. Wyckoff and others.
    Where the testator, after bequeathing certain specified articles of personal estate to his widow, and certain other specified articles of personal property and a farm to his son N., charged with an annuity to the widow in lieu of dower, devised to his son L. his farm in Bushwick, subject to an annuity to the widow in lieu of her dower therein, and subject to the payment of certain specified debts of the testator, stated to have been contracted for ffe benefit of the devisee, and to the payment of every other note or obligation which the testator had signed with him or endorsed for him, for the payment of which the testator’s executors were or might be liable, and subject to the payment of the debts owing by the devisee to the testator, and to his son N. and his daughter A.; and bequeathed the residue of his personal estate to his two daughters tobe divided between them, two and a half-years after his death, from which time, and not before, the executors were to charge his son L. with interest on the debts owing by the latter, for the use of the testator’s said daughters; Beld, that the personal estate bequeathed by the testator to his widow, and to his son N. and to his two daughters, was by the terms of the will exonerated from the payment of the several debts charged upon the Bushwick farm devised to his son L., and that such farm was primarily liable for the payment of such debts.

      Beld further, that the individual or personal debts of the testator, not charged upon the Bushwick farm, were not provided for by the will, and were therefore primarily chargeable upon the testator’s residuary personal estate which was not specifically bequeathed to his widow and his son N.; and that the debts due the testator from his son L., and which were charged upon the Bushwick farm, constituted a part of the fund for the payment of those debts of the testator which were not provided for by his will.

      Beld also, that the devisee of the Bushwick farm, having accepted the devise, could not raise the question whether the notes or obligations which the testator had t signed with him were, or were not, the proper debts of such devisee; and that they were primarily chargeable upon the Bushwick farm, even if they were the proper debts of the testator as between him and the devisee.

      Heldfvriher, that the owners of a joint and several note signed by the testator and his son L., which by the will was charged upon the Bushwick farm, had a right to file a bill to obtain payment of the same out of the proceeds of the farm, without waiting the three years allowed by law to the executors to apply to the surrogate, for an order to sell real estate for the payment of debts, and without previously exhausting their remedy against the personal estate in the hands of the executors.

      Held also, that the heirs at law of the testator were not necessary parties to a bill to obtain payment of a debt out of real estate upon which it was specifically charged by the will of the testator, and which real estate was the primary fund for the payment of such debt.
    Where a debt of the testator is primarily chargeable upon lands specifically devised, if the creditor obtains payment thereof out of the personal estate or other property which is only secondarily liable, the owners of such personal estate or other property are entitled to be subrogated to the rights of such creditor, as against the estate specifically devised. And to prevent circuity of action, a court permits, and sometimes requires the creditor, who has two funds to resort to, for payment of his debt, to proceed at once against the primary fund, without subjecting the owners of the secondary fund to useless litigation.
    When the testator charges his real estate, or any part of it, with the payment of his debts, in exoneration of his personal property, the creditors may at once come into chancery to obtain satisfaction of their debts out of such primary fund; although they have a perfect remedy at law against the personal estate in the hands of the executors.
    A judgment, recovered against the devisee of real estate, which estate is charged by the testator with the payment of a joint and several note given by such devisee and the testator, upon which such judgment is obtained, is at law junior and subordinate, as a lien upon the real estate of the devisee, to a prior judgment against such devisee for his individual indebtedness.
    Where real estate is devised, charged with the payment of debts, and the several creditors to whom such debts are due are named in the will, if one of such creditors files his bill to obtain satisfaction of his debt out of the estate devised, he should make the other creditors, whose debts are still due, parties to the suit. But where the creditors are not named in the will, and the complainant is unable to ascertain that there are any other creditors, or who they are, it is sufficient to state that fact in his bill, in the first instance.
    This was an appeal, by the defendants Wyckoff and wife, from a decretal order of the vice chancellor of the first circuit, overruling their demurrer to the complainant’s bill. In November, 1837, Peter Wyckoff and his son Lambert, one of the defendants in this suit, gave their joint and several promissory note to Edmund Smith, for $5000, payable in three years, with semiannual interest. Peter Wyckoff died in 1842, leaving this note unpaid. And by his will he disposed of his real and personal estate as follows: Firstly, he directed his executors to pay his funeral charges out of his personal estate. Secondly, he gave to his wife all his household and kitchen furniture, bedsteads, .bedding, woollen, linen and cotton goods; and the use and occupancy of two rooms in his mansion house, where she was to be furnished by his son Nicholas with a sufficiency of fuel during her widowhood. Thirdly, he devised to his son Nicholas his homestead farm, subject to the privileges therein devised to his widow, and subject to the payment to her of an annuity of $200, in semi-annual payments, during her widowhood, in lieu of her dower in such farm; and he also bequeathed to his son Nicholas absolutely all the horses, cattle, swine, wagons, harness, mechanical tools, and implements of husbandry, of every description, belonging to him the testator either wholly or in part, and then in his possession on said farm. Fourthly, he devised to his son Lambert, one'of the defendants in this suit, and to his heirs and assigns, his farm in Bushwick, subject to certain charges thereon; which charges, as contained in the will, were in the following words : “ Subject nevertheless to the payment of two hundred dollars per year, in half-yearly payments, to my widow, during her widowhood, in lieu of her right of dower in said farm; also subject to the payment of a note which I have signed for his use in favor of Edmund Smith of the city of New-York, for $5000; also subject to the payment of my bond for $1500, given to Henry Onderdonk, for money loaned for his use; also subject to the payment of every other note, or obligation for the payment of money, which I have signed with him, or endorsed for him, for the payment of which I or my executors or administrators are or may be liable; also subject to the payment of the debts which he owes to my son Nicholas, and my daughter Anne, the widow of Adrian Onderdonk; and also subject to the payment of all the debts which he owes to me on his notes.and obligations.” And lastly, the testator bequeathed to his two daughters, Anne Onderdonk, and Sarah, the wife of J. G. Van Cott, all his personal estate which he had not previously disposed of by his will, to be equally divided between them, or their heirs, by his executors, within two and a half years after his death: from which time and not before, he directed his executors to charge interest, for the benefit of his said daughters,, upon the debts which his son Lambert owed to him.
    Edmund Smith, the payee of the $5000 note, having died, and Lambert Wyckoff, the surviving maker thereof, haying neglected to pay the same, the bill in this cause was filed by the executors of the payee, in behalf of themselves and all other creditors of Peter Wyckoff whose debts were charged upon the farm devised to his son Lambert, to obtain payment and satisfaction of their debts out of said farm, and for such further or other relief as they were entitled to, upon the case made by their bill. And Lambert Wyckoff, the devisee, and his wife, and the executors of Peter Wyckoff the devisor, and Nicholas Wyckoff and Anne Onderdonk, whose debts were charged upon the devised premises, and John Wyckoff a judgment creditor of the devisee, who had obtained a general lien upon the premises, by the docketing of his judgment in the county in which the farm was situated, were made parties to the suit. Lambert Wyckoff and his wife put in a demurrer to the whole bill, for want of equity; and stated as special causes of demurrer, that three years had not elapsed since the granting of letters testamentary upon the estate of Peter Wyckoff the decedent; that it did not appear that the personal estate of the decedent was insufficient to pay his debts; that it did not appear by the bill that the personal estate of the decedent was exempted by his will from the payment of his debts; that it did not appear that the complainants had applied to the executors of the decedent for payment; that no proceedings had been had. by the complainants to collect their debt, from the personal estate of the decedent or otherwise; that they had not obtained any judgment against any person for such debt; that it did not appear that the defendant Lambert Wyckoff was insolvent, so that they could not have obtained payment of their debt by an action at law against him; that all the heirs at law of the decedent were not made parties to the suit; and that the complainants had a full and adequate remedy at law. The notice of appeal was in the name of Lambert Wyckoff alone; but the counsel for the parties, upon the argument, consented that it might be considered as an appeal by him and his wife jointly.

      G. Bowman, for the appellants.
    The bill is prematurely filed, and should for that reason be dismissed. (2 R. S. 46, § 53. Leonard v. Morris, 9 Paige, 90, Butts v. Genung, 5 Id. 256.) All the heirs at law of Peter Wyckoff should have been made parties. (Calvert on Parties, § 3, 4. 17 Law Library, 162, 171.) The bill cannot be sustained unless the debt of the complainants is expressly and exclusively charged on the real estate devised to Lambert Wyckoff. (2 R. 8. 369, §§ 33, 34, 35, 36.) The debt is not so charged. By the established rules of construction, the will of Peter Wyckoff does not exonerate his personal estate from the payment of his debts; and the pérson-alty therefore continues the primary fund for such payment. (jSaurwéll v. Walce, 1 Bro. C. C. 146. Ancaster v. Mayer, Id. 454. Stephenson v. Heathcote, 1 Eden's C. R. 38. Dolman v. Smith, Prec. in Ch. 457. Hazlewood v. Pope, 3 P. Wms. 323. Tait v. Lord Northwick, 4 Yesey C. R. 820. Hartley v. Hurle, 5 Id. 500. Gray v. Minnethorpe, 3 Id. 103. Brwm-mel v. Prothero, Idem,, 111. Bridges v. Phillips, 6 Id. 566. Watson v. Brickwood, 9 Id. 447. Aldrige v. Lord Wallswort, 1 Ball & Beat. 312. Seaver v. Lewis, 14 Mass. R. 83. Dun-lop v. Dunlop, 4 Dess. Rep. 323. Lowndes’ Law of Legacies, 329 and cases cited. Inchiquin v. French, 1 Cox C. C. 5. Ambl. 33. Brornhall v. Wilbraham, Forrester, 274.) Although the rule as to what is necessary to make real estate the primary fund for the payment of debts has been somewhat relaxed in England, yet it has not been relaxed in this country. {See Get-tins v. Steele, 1 Swanst. 24, note 1. Seaver v. Lewis, 14 Mass. 83. Lupton v. Lnipton, 2 John. C. R. 614.) Although real estate is expressly charged by the will, yet if no express power or direction to sell is given, the court will not order a sale unless a necessity therefor be shown. {Stapleton v. Cole-

      ville, Tali. 208, referred to in note a. to WP Gleland v. Shaw, 2 Sch. Sf Lef. 544. Harris v. Fly, 7 Paige, 427.) Wainwright v. Bendlowes, (2 Vern. 718,) “ A difference is to be ■taken where the estate is to be sold out -and out for the payment of debts, and where the debts are only charged on it.” (2 Sch. & Lef. 540. Lamby v. May, Prec. in Ch. 37. Leigh v. Earl of Warrington, 4 Bro. P. C. 90. Davis v. Gardiner, 2 P. Wms. 187.) A court of chancery will not decree a sale of lands, where no time for payment is appointed. (Lowndes on Leg. 320 and cases cited.) A power of sale may be implied from the fixing of the time of payment. {Evelyn v. Evelyn, 2 P. Wms. 669.)

      H. Nicoll, for the respondents.
    It was the intention of the testator that the complainants’ debt should be paid exclusively out of the real estate devised to his son, the defendant Lambert Wyckoff, and that his personal property should be exonerated therefrom. If the court, upon an examination of the testator’s will, is satisfied that he intended to exonerate his personal estate from the payment of debts, it will give effect to such intention. It is not necessary that the evidence of such intention should be found in express words. It is sufficient if it may be gathered from an inspection of the whole will. {Lord Inchi-quin v. French, 1 Cox, 1, and note. Tait v. Lord Southwick, 4 Vesey, 816. Hancox v. Abbey, 11 Id. 109. Watson v. Brick-wood, 9 Id. 454. Bootle v. Blundell, 1 Mcriv. 154. Gittins v. Steéle, 1 Swanston, 28. Lupton v. Luptón, 2 John. Ch. Cas. 623. Hawley v. James, 5 Paige. 449. Harris v. Fly, 7' Id. 425.) Where the will contains a bequest of the personal estate, not as a mere residuum, and. debts are charged on the realty, there is in that circumstance alone sufficient evidence of an intention on the part of the testator to exonerate his personal estate from the payment of such debts. {M’Cleland v. Shaw, 2 Sch. if Lef. 544. Tait v. Lord Southwick, 4 Vesey, 816 Watson v. Brickwood, 9 Id. 454. Tower v. Lord Rows, 19 Id. 138. Greene v. Greene, 4 Madd. 148. Seaver v. Lewis, 14 Mass. 83.) The evidence of such intention on the part of the testator must be found in the will alone, and the court will exclude all extrinsic circumstances in its construction. (Brum-on,ell v. Prothero, 3 Vesey, 111. Mann v. Mann, 14 John. R. 1.) The court will marshal the assets of a testator, in favor of legatees of the personal estate, where debts are specifically-charged on the real estate; and will compel the creditors to exhaust such real estate, by a sale, before they will be permitted to resort to the personal estate. (Lanoy v. Duke and Dutchess of Althoe, 2 Atk. 446. Martin v. Martin, 1 Vesey, jun. 212. Mogg v. Hodges, 2 Vesey, sen. 63. Clifton v. Burtt, 1 P. Wms. 678, and note. Sagittary v. Hyde, 1 Vern. 456. Cheesborough v. Millard, 1 John. Ch. Cas. 409. Lutkins v. Leigh, Cas. Temp. Talb. 52. 2 Story’s Eq. Jurisp. 530, 31, 32,33.) The bill in this cause was filed by the complainants on behalf of themselves and of all others whose debts or legacies were charged by the testator on the real' estate devised to the defendant Lambert Wyckoff. This is in accordance with the well settled doctrines of this court in the matter of parties. (Brown v. Ricketts, 3 John. Ch. Cas. 533. Fish v. Howland, 1 Paige, 20.) The heirs at law of the testator are not necessary parties to the bill, because the will has been duly proved as against them in the office of the surrogate of Kings county. And even if such had not been the case, their presence before the court in this suit would not be required. (Harris v. Ingledew, 3 P. Wms. 91. Morrison v. Arnold, 19 Vesey, 673, - Calvert on Parties to Suits in Eq. 163, 64, 65. 17 Law Library. Sugden on Vend, and Purch. 369, 370, 9th Land. ed. and cases there cited.) Whenever lands are charged with the payment of debts or legacies, this court will order a sale thereof. (Sta-pleton v. Colville, Cas. Temp. Talb. 202.) The complainants’ bill discloses a proper case for the interference of the court in granting the relief prayed for; and the demurrer of the defendant Lambert Wyckoff should be overruled with costs.
   The Chancellor.

This case steers clear of all the conflicting decisions as to what shall be considered as evidence of the intention of a testator to charge his real estate, with the payment of debts or legacies, in exoneration of his personal property. But even if the debts charged upon the farm devised to the defendant Lambert Wyckoff, in this case, had been the proper debts of the testator himself, I think there is sufficient in this will to show that he intended that his wife, and his son Nicholas, and his two daughters, should take all the personal estate, bequeathed to them respectively, exonerated from the payment of these particular debts; unless this Bushwick farm, devised to his son Lambert, should prove insufficient for that purpose.

From this will, it is perfectly evident that the testator did not consider himself as providing for debts owing from him individually, in the devise of this farm to his son charged with the payment of the several debts mentioned in the will. What he considered as his own individual debts, if he had any such, are left wholly unprovided for in the will; and must of course form a charge upon the personal estate not specifically bequeathed to his widow and his son Nicholas. And a part of the fund for the payment of such individual debts, if there are any, consists of debts due from the devisee of the Bushwick farm, to his father, which are expressly charged upon those premises. It is not distinctly averred in the bill that the note of $5000, given to the testator of the complainants, by Lambert Wyckoff and his father, in November, 1837, is the identical note described in the will, as a note of $5000 which the testator had signed for the use of the devisee, in favor of Edmund Smith ; though there can be no reasonable doubt of the fact. But even if this was a different note, it is also expressly charged upon the demised premises by the subsequent clause of the will, which subjects the Bushwick farm to the payment of every other note, or obligation for the payment of money, which the testator had signed with Lambert Wyckoff the devisee, for the payment of which the testator was, or his personal representatives, might be liable. Thé note in question certainly is one signed by Peter Wyckoff with his son Lambert, for the payment of which the testator was liable at the time of the making of his will; and which his executors must pay out of the personal estate, if the same cannot be collected from the devisee or out of the proceeds of the farm devised to him. Nor can the devisee, who takes the farm under the provisions of this will, raise the question whether the notes signed by him with his father, and thus made a specific charge upon the devised premises, were in fact given for debts which the devisee in justice and equity is bound to pay. For if he claims the farm under this will, he must take it subject to the payment of such debts as the testator thinks proper to charge him with, as a condition of such devise.

This is not a proceeding under the revised statutes to charge a devisee of real estate with the general debts of the testator; in which case the creditor is required to wait until the expiration of the three years allowed to the personal representatives of the decer dent to apply for an order to sell the real estate for payment of debts; and where the remedy against, the personal estate must be exhausted before the real estate, in the hands of heirs or devi-sees, can be resorted to. None of the objections founded upon, the provisions of the revised statutes, therefore, can be sustained. Nor are the heirs at law of the testator necessary parties, even if he left any real estate not specifically devised. For the Bushr wick farm is in equity the primary fund for the payment of the debt of the complainants. And if this debt should be collected by them out of the personal estate of the decedent, or out of real estate descended to his heirs at law, the legatees of the personalty, or the heirs at law of the real estate, whose property had been thus applied would be entitled to be subrogated to the rights of these complainants, as against the prim'ary fund. To avoid such circuity of suit, therefore, a court of equity permits,, and sometimes requires a creditor, who has two funds to resort to for payment of his debt, to proceed at once against the primary fund; without subjecting the owners of the secondary fund to useless litigation. Where the testator, therefore, has charged his real estate, or any part of it, with the payment of his debts, in exoneration of his personalty, the creditors may come at once into this court to obtain satisfaction of’ such debts out of such primary fund; although they may have a perfect remedy at law against the personal estate in the hands, of the executors.

Nor is the objection that the complainants have not exhausted their remedy at law against Lambert Wyckoff, as the surviving maker of the note, well taken. The note given to the testator of the complainants, by Peter Wyckoff and his son Lambert, was a joint and séveral note. The complainants therefore had the right to proceed either against the surviving maker of the note, upon his personal liability as one of the joint and several makers, or against the estate of the deceased maker, at their election. Here, if they had proceeded against the devisee, at law as the surviving maker of the note merely, any judgment which they might have recovered against him, for this debt, would have been junior and subordinate, as a lien upon his real estate, to the $6000 judgment, recovered by John Wyckoff against him in 1842. And if they had sued the executors of the deceased maker, at law, they would have done palpable injustice to the legatees of the personal estate, as the owners of the fund which was only secondarily liable for the payment of the debts specifically charged by such deceased maker upon the Bush wick farm. Independent-of the principle upon which ordinary creditors’ bills are sustained in this court, after the remedy at law against the debtor has been exhausted, these-complainants had a right to file their bill at once against the devisee of the real estate which the deceased maker of this joint and several note had charged with the payment of this debt, in exoneration of his personal property.

The objection that it appears by the bill of the complainants that there was a debt due to H. Onderdonk, for $1500, which was also a specific lien upon the Bushwick farm, and that he ought to have been made a party, was not raised by the demurrer ; nor was it raised ore tenus, upon the argument of the demurrer in the court below. It cannot, therefore, avail the appellants here as a ground for reversing the decretal order appealed from. I am inclined to think the bill is technically defective in this respect, according to the decision of Lord Kenyon in the case of Morse v. Sadler. (1 Cox’s Cas. 352,) and of this court in Hallet v. Hallet, (2 Paige’s Rep. 22.) Where the creditors whose debts are charged upon real estate are named in the will, it appears to be proper that any one of them who files a bill to obtain satisfaction of his debt out of the real estate thus charged should make the other creditors who are thus known and whose debts are still due, parties to the suit, so that the purchaser may get a good title, and that the property may not be sacrificed by a sale which will not cut off the claims of creditors who are not made parties. But where the names of the creditors are not specified in the will, and the complainant is not able to ascertain that there are any other creditors, of who they are, an averment to that effect appears to be sufficient. At least it will be an answer to any objection for a want of parties, until the defendant, by his answer, distinctly points out what other persons have specific liens upon the real estate, thus charged, as creditors; so as to enable the complainant to make them parties. In this case I think it may fairly be inferred from the bill, that H. Onderdonk, whose bond debt of $1500 was charged upon the Bushwick fárm, is still a creditor whose debt remains unpaid. If so, he should have been made a party, either as a complainant or a defendant in the suit. For this reason, although the decretal order appealed from must be affirmed with costs, it must be without prejudice to the right of the appellants to raise the objection in their answer, that he is not made a party; unless the complainants shall amend, by making him a defendant in the suit, or by inserting an averment in their bill "that his debt has been paid, so as to be no longer a specific lien upon the farm devised to Lambert Wyckoff.

The proceedings are remitted to the vice chancellor.