text:
    White vs. Buloid and others. Buloid and wife vs. White
    April 6th.
    In no case is the complainant in the original suit compelled- to' stay proceedings therein, upon the filing of a cross bill, except by a special order of the court. • '
    If the complainant in the cross bill, wishes tq stay proceedings in the original suit, the cross bill should be filed on oath, and a certificate of counsel should be .obtained, stating that he believes a stay of proceedings in' the original suit to be "necessary for the attainment of justice in the' caUse, and that the cross bill is not .intended-for delay. , ... ■
    Notice of the ■ application for an order tp stay the.prqceedings in the original cause should be givqn to the adverse party; *• ■
    Itisnota matter of course, to stay the proceedings in the original suit in any case, unless the defendant in the cross bill is in contempt for not answering.. If the cross bill is not filed before" or" at tile time of answering in the original suit, the delay must be accounted for, or the proceedings will not be stayed.
    It- is not "too late "to file a cross' bill after the proofs in the original suit" are closed, if the complainant in the cross hill is willing to, go to a hearing on bill - and answer as to tjhecross.suit-.1 ,,
    "If a cross bill is taken ad confessed, jt piay be used as evidence against the complainant in the original suit, oh the hearing, and will have the same effect as if he had admitted the" same facts in an answer:
    ' After both Causes are at issue, or in a situation to he heard, the complainant in the’cross suit may have an order that they he heard together.
    But the delay of the complainant in the cross suit will not be permitted to.de- ■ ' lay the hearing of the original cause.
    On appeal from an interlocutory prder of a vice chancellor, the question-of of- • firming or reversing his'decision must" depend upotithe facts which wefe ' ..before him at the time the decision1 was made, , , " ■
    " These causes came befdre the chancellor upon.an. appeal " from an order made by the late equity court of the first circuit, on the 31st of December, 1829." The second suit was upon a crpss bill filed by the defendants "in the first suit. The defendants in the first suit, who are the - complainants in the last, dpplied to .postpone the hearing" in the* original cause» and to stay the taking of the testimony in ¿pen court before! the circuit judge, until the complainant therein had answered the cross bill. The -facts in the case are sufficiently stated in. the' opinion of the chancelló®.

      Fessenden fy Ketchúm, for.-the appellants.-

      William Silliman', for" the respondent.
   The Chancellor.

The practice in relation to cross bills does not appear to be well settled, either in this state or in the English courts of chancery.' It may therefore be necessary to look into the origin of the practice, and notice the changes it has undergone, for the purpose of applying its principles to the present practice of the court under the new mode of taking proofs openly, or in open court before the circuit judges, as was done in the late equity courts. The bill and cross bill were derived from the civil law, and they answer to .the conventio and reconventio in the Roman tribunal. If the reconventio came in before the litis contestado, or joining of the issue in the suit, it was in time, and both .causes went on pari passu. The same probatory term was assigned to both, and the same time was given for publication. It is from this we find in the old books of practice that the cros bill should be filed before or at the time of answering the original bill, which generally answered to the litis contestado of the Roman law. If it did not come in before that time, the causes could not proceed together, as the original cause was then gone from the prsetorian forum to the judices. (2 Bro. C. & A. L. 348. How. Eq. Side, 287.) Where the reconventio or cross bill came in after the litis contestado or joining of issue, it did not stop the complainant in the examination of his witnesses, unless the defendant in the reconventio was in contempt for not answering. If it came in, even after publication, it was not too late, but the party must go to a hearing on the testimony taken in the original suit, and on the answer of the defendant in the cross suit; because, after publication passed, no witnesses could be examined to the same matter as to which proofs had already been taken and published. (Cur. Canc. 337. Gilb. For. Rom. 47. Ward v. Eyles, Mosel. 382.) The English practice at the present day appears to be to grant an order of course to stay publication until a fortnight after the answer to the cross bill has come in, where the cross bill has been filed in time, that is, before the. issue has been joined in the original cause. (Hinde, 54. 1 Atk. Rep. 21.) But where the cross bill is not filed until the original cause has been proceeded in, the motion to enlarge publication must be special, and upon notice to the adverse party, that the court may judge of it on the circumstances. (Aylett v. Easy, 2 Ves. sen. 336.) In no case is the complainant in the original suit compelled to stay proceeding therein without a special order for that purpose. (Noel v. King, 2 Mad. R. 392.) After both causes are at issue, or in a situation to be heard, the complainant in the cross suit may, on motion, have an order that both causes be heard together; a copy of which is to be served on the solicitor for the complainant in the original cause. But notwithstanding this order, the delay of the complainant in the cross suit will not be permitted to delay the hearing of the original cause. (How. Eq. side, 289.) The practice on this subject in the Irish court of chancery is undoubtedly more conducive to the ends of justice, and is best adapted to our system of taking testimony orally. There the cross bill must be filed on oath, and the certificate of counsel that it is not intended for delay, and that it is necessary for the attainment of justice in the cause. And the proceedings in the original cause are not to be delayed in any case, unless upon the special order of the court, founded upon notice of the application to the complainant therein.

In the case now before me, although some witnesses had been examined, the bill was not filed too late, as the proofs in the cause had not been closed. Neither would it have been too late after all the testimony had been taken, if the complainant in the cross suit had elected to go to hearing on the answer of the defendant therein. She could not complain that there was danger of perjury in her answer,. although she had heard all the testimony in the cause. But the hearing of the original cause ought not to be delayed in this case, unless there are merits in the application, and a sufficient excuse is given for the delay. I do not think it a matter of course in any case in this court to stay the proceedings in the original suit, except it may be where the defendant in the cross suit is in contempt for not answering. It will be necessary therefore to look into the merits of the cross suit, and to examine the reasonableness of the excuse for the delay.

The original bill was filed to the equity court of the first circuit by Lydia White, the step mother of Mi's. Buloid, and the executrix of her father, claiming the proceeds of certain real estate which had been paid into that court. She claimed it on the ground that she was a creditor of her late husband under an ante-nuptial agreement to a large amount. She has no claim to the proceeds of the real estate unless the personal property is insufficient to meet her demand. Hence the litigation in the original suit necessarily embraces the settlement of the whole of the estate which came into her hands as executrix. Mrs. Buloid, as one of the devisees under the will, is entitled to a full discovery in relation to that estate as well as to many other matters set up in the answer and charged in the cross bill. From the very nature of the transactions out of which the claim of Mrs. White arises, it will be impossible for the appellants to go into the examination of witnesses understandingly, without the answer of the respondent.

There has been considerable delay in filing the cross bill, but some part of it may be justly attributed to the irregularity of the respondent’s proceedings. The original bill was filed in December, 1827, and the appellants put in their answer in February, 1828. By the 16th rule of the equity courts, the replication should have been filed within thirty days thereafter. It was not filed until about 20 months afterwards. After the expiration of the thirty days the cause was in readiness for hearing on bill and answer ; and the complainant had no right to file a replication without the special leave of the court, and upon such terms as might have been reasonably imposed. If the replication had not been filed, in October, 1829, the cross bill probably would not have been necessary. Although the irregularity in filing the replication at that time has been waived by the subsequent proceedings on the part of the appellants, their cross bill was filed very soon after the complainant again moved in the cause. The affidavit of the solicitor and counsel satisfactorily accounts for the delay. If Mrs. White’s health is such that she cannot understand her rights sufficiently to put in an answer, other persons should not be permitted to proceed in the original suit in her name until she is so far restored as to answer the cross bill. The circuit, judge has acted on the supposition, that the examination of some of the complainant’s- witnesses before an examiner, was suffi-" cien.t to- preclude the filing of. a cross bill. But if the order for that examination was made .exparte and without notice, as stated by .the counsel on the,argument, even that was irregular. - -For under the 42d rule of the equity courts, the defendant’s solicitor was entitled'to notice of the .motion and. a copy of the petition upon which it was founded.'

The decision of the late equity court of the first circuit, must therefore be reversed with costs and the time for taking the proofs in the original cause must be extended till'for- . ty days after the defendant ip . the cross suit has put in and perfected her answer to the cross bill. ,1 And then both causes must be heard together, if the appellants, are ready to bring their cross suit tb a hearing without any further delay to the proceedings in the original suit., The cause must be remitted to -the vice chancellor of the first circuit, that the fur-. t‘her proceedings therein and in the cross-suit may-be had before him', ' .....

. The néw affidavits which have been' presented by the re-' spopdent’s solicitor, exparte, .since the hearing of this cause, cannot affect the "question as to the affirmance or reversal of the decision of the equity court, If-the. facts then before the court éntitled the, appellant to á.stay of proceedings, the decision, was erroneous and must, be reversed. The rule. to., answer the cross bill in thirty days, or that it.be taken as-confessed, could not vary the appellant’s rights. The bill taken as confessed, would have been equally availiable to them, in the original suit, as an answer to the cross bill admitting. the facts ■ therein charged. And' it.' might have been read at .the hearing, to sustain the7 allegations in the answer to. the original bill. If the respondent wished to introduce any new facts to.vary the order which this court might otherwise make on the appeal, he should have served copies of •his affidavits on the opposite party, to enable them to answer the same. The. order must therefore be entered as. above directed ; but with .leave to the defendant to apply to .the chancellor to alter or modify the same upon the affidavits now presented, and upon due notice to the adverse party. Copies of the affidavits to be served with such notice.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Lupin and others vs. Marie and Varet.
    Where L. on the 24th August, 1826, sold to M. who was then in good credit, and supposed himself solvent, a quantity of goods, for which M. was to give his own notes without security, payable in six, seven, eight, nine and ten months; and the goods were delivered to M. and shipped by him for the West Indies on the 26th of August, 1826 and on the 4th of September thereafter, and before he had executed the notes M. stopped payment; and on the 9 th of the same month M. assigned the goods to V. to secure him for a large sum of money, for which he was responsible as endorser for M.; and on the 5th September L. applied to M. for a re-delivery of the goods, and also afterwards, in the same month, claimed the goods from V., and both M. and V, refused to redeliver the goods to L., and M. and V. denied all fraud in the transaction, and V. denied all knowledge at the time of his purchase, of the conditions of the sale by L. to M. and also of the nonpayment for the goods on the part of M.; it was held that the sale and delivery of the goods to M. was unconditional and valid, and was sufficient in law to change the property; that the assignment by M. to V. was also valid, and that L. had no lien on the goods for the purchase money due him from M.
    The principle of stoppage in transitu does not apply to such a case; that right must be exercised, or an attempt made to exercise it before the goods reach the possession of the vendee.
    If goods upon a sale thereof, are unconditionally delivered by the vendor to the vendee without any fraud on the part of the latter, the vendor can only look to the personal security of the vendee for the payment of the purchase money; he has no equitable lien for the same on the goods.
    If the delivery of the goods is procured by the fraud of the vendee, the title will not pass to him, and the vendor can reclaim the goods if they have not passed into the hands of a bona fide purchaser.
    A purchaser, however, from such fraudulent vendee, to secure antecedent debts or responsibilities, cannot hold the goods as against the vendor.
    So, if the delivery of the goods was conditional, the title docs not pass until the condition is performed.
    But a bona fide purchaser without notice of the fraud will be protected, even in the case of a conditional delivery.
    Where a merchant in good credit who knows himself to be insolvent, fraudulently conceals that fact from the vendor, and purchases goods without intending to pay for them, or for the purpose of assigning them to his confidential creditors, such sale may be set aside as fraudulent,

      In a caee'of great hardship, where- the complainants had Reason to- snppqs® that the conduct of the defendants was fraudulent until they put in their answer,- which fully explained tire .circumstances'of the. case, the court dismissed the' bill without costs. • ' , "
    April 6th.
    The défendant J. B. Marie'was- a shipping merchant, and importer • of-goods, residing' in the city, of Néw-York;. and the complainants were merchants living in' Paris, who carried on business in the city of Ñew-York By an agent. Marie , had for two or three years been in the. habit of purchasing goods from his agént upbn .credit, and without, giving security. On the morning of the 2.4th of'August, 1826, the agent of the complainants called at the office of Marie, and sold to , him 18 packages of goods, amounting to about 57,000 .francs, for which sum-the latter .agreed to give his own notes, .without security, payable in ■ "six, seven, eight, nine - and' ten . months. At the time of the sale, Marie informed the agent., that he intended to ship the merchandize to the West. .Indies, The goods were immediately delivered to Marie, and were by him shipped to’the West Indies -on the 25th or 26th day of August. At the time of the sale Marie was in good credit ; but on the 4th of September thereafter, and before he had executed his notes -for the goods, he" failed. "On the ninth of the same month he assigned,to the defendant Yaret,, four several-shipments of goods which had been made on'the 15th of April, the .1st-of June, and on the 9th.and. 26th of August previous. . And in such assignment .was included -the merchandize-purchased from the complainants. This assignment was made for the purpose of'securing to Yaret the payment of "about sixty thousand "dollars, for .which "he had be-, come responsible, as the endorser for Marie and as his surety upon custom house bonds, <fe,c.‘ On the 5th of September, after Marie stopped payment, the agent-"of the complainants applied to him for a rédelivery’of the goods, and for. an order for the goods .upon the captain of the, vessel in which they had been shipped. But Marie refused - to redeliver "the goods, and declined giving the .order requested by the agent... On the 19th of September, the brig in which the' goods'were shipped put into Norfolk. to"repair. While th'e brig was in. •that port, Yaret was informed-by "the agent that the- co-mplaimants claimed the redelivery of the goods ; but Yaret also refused to make such redelivery, and directed his agent at Norfolk to re-ship them to himself at New-York. Yaret, upon their arrival in New-York, sold the goods, and the net proceeds were about $7000. The complainants filed their bill in this cause, iusisting upon their right to either a redelivery of the goods, or to the payment of the original consideration agreed to be paid for them; upon the ground that the purchase by Marie was fraudulent, and that the notes for the consideration money were not executed previous to the failure of Marie. The defendants denied all fraud in the transaction ; and Marie alleged that he had always been ready to execute the notes, but had never been requested to do it. Yaret in his answer denied that at the time of the assignment to him he knew or suspected the conditions of the sale to Marie had not been complied with by him, or that the merchandize had not been paid for. And he insisted upon the validity of his title under the assignment from Marie ; and that the sale and delivery of the goods to Marie was valid and sufficient in law to change the property. The cause was heard on bill and answer.

      C. Graham J. Talmadge, for complainants.

      Charles Baldwin, for the defendants.
   The Chancellor.

The principle of stoppage in transitu is wholly inapplicable to this case. Goods cannot be stopped or reclaimed unless the right is exercised, or there is a bona fide attempt made to exercise it before the property actually comes into the possession of the vendee. In this case the goods had come into the possession of the vendee, and had been shipped by him to the West Indies, and were on their way thither before his failure.

The vendor of real estate has, in many cases, an implied lien on the property sold, for the purchase money, where no express lien or other security is agreed upon by the parties. But there is no such lien on personal property, even as between vendor and vendee. If the goods are absolutely and unconditionally delivered, without any fraud on the part of the Vendee, the .vendor can only look to his personal security ‘for payment; (Chapman v. Lathrop, 6 Cowen's Rep. 110 ; 1 Greenl. Rep. 376.) If the delivery of the goods is obtained by. the fraud of the vendee the title .does not pass, and the vendor' may reclaim the goods if they have not passed'into the hands of a bona" fide purchaser." In such a case the assignee to. whom the goods have been assigned ■ to secure' antecedent debts or responsibilities," canrlot hold'thetp'as against the seller. So also if the delilvery was not intended by the parties to be absolute, but conditional, the vendor, .does not. part with his property until the condition is complied with. (4 Mass. Rep., 405. 6 John. Ch. Rep. 437. 4 Mason’s Rep. 289. 1 Paige, 312.) But even in that-case- a bona fide purchaser who 'has no notice of the fraud will be protected. For where one pf two innocent, persons must suffer by the acts-of a third, he who has enabled such third person to occasion the injury' must sustain the- loss.

It is not necessary in this case' to decide whether it would be sufficient, to avoid'a sale as fraudulent - if a merchant' in good .credit purchase goods- upon his o„wn responsibility, who knows himself to be insolvent at . the timé," but conceals that fact from, the vendor. ' If he made- the purchase.. under such circumstances,'intending never to'pay for them, or for the purpose of placing.them in the hands of an assignee for the -benefit of other creditors, there , can be no. doubt it would be such a fraud as would avoid the sale. But in this case it is évident that no fraud was intended. The goods were. ■ purchased on' the 24th of August and shipped on the 26th. At that time Marie had- no reason to suppose he was insol-. vent, although he was so "in fact, Frotó his answer,- which has. not been replied "to and therefore must be taken as true, it appears he then supposed himself solvent, and actually, paid $18,000 of' his debts after the sale. ‘Between that time and the day he stopped payment,' several vessels arrived from abroad, bringing him intelligence of the" failure of the house of Goldschmidt & Co. with, which he had great commercial dealings, and of "other.'heavy losses-sustained in-his Commercial speculations elsewhere. These- accumulated disasters compelled him to suspend his payments on the fourth .of September. i . , ■ : ."

I also think the delivery was not conditional and that it was not intended to be so by either party. The purchase was Made at the solicitation of the complainant’s agent and upon the personal responsibility of Marie alone. No security was required, nor was it supposed necessary. The agent knew the goods were to be immediately shipped for the Havana, and they were sent on board the brig for that purpose. Although notes were to be given for the purchase money, the liability of Maria would not have been changed by the giving of such notes. The agent no doubt took it for granted they would be given whenever called for. There was therefore no good reason why the delivery should, be conditional, and I cannot believe either party so intended it. In Smith v. Dennie, (6 Pickering’s Rep. 262,) where goods were sold to be paid for in an endorsed note on delivery, and the goods were the next day delivered by a clerk in the absence of the vendor and without any thing being said as to the condition, and the vendor neglected, for eight days, to call for the note, after which the goods were attached by another creditor, the condition was considered as waived.

It may undoubtedly be considered a very hard case that the goods of the complainants, sold so short a time before the failure, and which at the time of the failure remained in the original packages and under the control of the vendee, should, to the entire exclusion of the complainants, go into the hands of Varet to secure antecedent debts and responsibilities. But such is the settled law of the land; and it is not in the power of this court to change it. The bill in this case must be dismissed; but as the complainants had grounds to suspect fraud or collusion until the coming in of the answer, which fully explained the reason of the failure, I shall not charge them with costs.


text:
    In the matter of E. Petit, a lunatic.
    A committee must be appointed in this state for a non-resident lunatic, to ena. ‘ ble him to obtain the control of property-here.
    And a commission may issue to ascertain the lunacy of a non-resident; but it cannot be executed beyond the limits of this state.
    Commissioners may be required to give the lunatic due notice of the time and place of executing a commission of lunacy, although the lunatic resides out of the state.
    April 6th.
    jN this case the alleged lunatic was a resident of Wilton, in the county of Fairfield and state of Connecticut. A petition was presented by her brother in law, setting forth that she was about thirty years of age, and was of unsound mind; that she was entitled to an undivided share of certain real property in this state, and also to twenty shares of the capital stock of The Newburgh and Cochecton Turnpike Company. The petitioner prayed that a commission of lunacy might be issued; and his counsel asked that the same be directed to certain persons in the county of Fairfield as commissioners.
    J. W. Knevels, for the petitioner.
   The Chancellor.

It was settled in the case of Perkins, (2 John. Ch, Rep. 124,) that a committee must be appointed by this court for a non-resident lunatic, to enable him to obtain the control of property in this state; and that a commission might issue for that purpose. But as the commissioners cannot authorize the empanneling, of a jury beyond the jurisdiction of this court the commission cannot be executed out of the state. (Southcot’s case, 2 Ves. sen. 402.) The usual order directing the commission to be executed at or near the residence of the lunatic must be dispensed with - in such a case; and it may be executed in such county as will be most convenient. In this case the residence of the lunatic is near the line of this state; the commission must therefore be executed in the adjoining county, which is most convenient and nearest to her residence. The commissioners must also give her due notice of the time and place of executing the commission, that she may attend if she thinks proper to do so.


text:
    Sewall vs. R. M. & I. Russell.
    Where R. R. & I. R., partners, confessed a judgment to W. their brother ?rt law for $25,000, under which the household furniture of R. R. together with other property was sold, and W. at the sale purchased the furniture and left it with R. R.; and it appeared that the judgment was given to W. to secure a debt due him of $2850, and to apply the residue of the said judgment when collected in paying such of the creditors of R. R. & L R. as R. R. should designate ; and the property of the firm which could not be reached by execution was assigned by R. R. to I. R. in trust to pay himself the costs of executing the trust, the expenses of obtaining R,R.’s. insolvent’s discharge, and the expenses of all suits at law or hr equity, and to apply the residue in payment of the debts of the firm in the order prescribed in a schedule annexed; S. a creditor of R. R. & I. R. prosecuted his debt to judgment against them, and issued an execution thereon which was returned unsatisfied; it was held that the judgment to W. was given to defraud creditors, and that the assignment from R. R. to I. R. was also fraudulent and void as against the creditors of R. R. & I. R, and that S. was entitled to receive out of the property so assigned the amount of his judgment, with interest and his costs of suit.
    April 20th

    The defendants were merchants in New-York, and failed. They then confessed a judgment to W. S. Smith, their brother in law for $25,000, under which judgment the furniture of R. M. Russell with other property was sold. The furniture was bid in by Smith and left in the possession of R. M. Russell. By the answer of the defendants it appeared that this judgment was given to secure a debt of $2850 to Smith, and to enable him to collect the residue of such judgment and . to apply the money in payment of such of the creditors of the firm as R. M. Russell should thereafter designate. The property of the firm which could not be reached by an execution was assigned by R. M. Russell to Israel Russell, his copartner, in trust in the first place to pay Israel Russell the costs and expenses of executing his trust, the expenses of procuring R. M. Russell’s discharge under the insolvent act, and the expenses of prosecuting and defending all suits in law or in equity and to apply the residue to the payment of the debts of the firm, in the order prescribed in a schedule annexed to the assignment. The complainant having proceeded to judgment and execution at law for a debt due to him by the firm of R. M. & I. Russell, and the execution having been returned unsatisfied, he filed his bill in this cause against the said, R. M. & I. Russell to obtain satisfaction of his judgment out of their joint and separate property, which had been placed beyond the reach of ah execution at law. The cause was heard on bill -and answer.

      R. Sedgwick, for the complainants.
    S. A, Foot, for the defendants.
   The Chancellor.

The objection that as R. M. Russell had assigned all his interest in the property and effects of the firm to his copartner, he ought not to be a party defendant, cannot be sustained. -The complainant’s judgment at law being against him, as well as against Israel, he was a proper party' to a suit seeking satisfaction of that judgment, although the property might all be in the hands of his co-defendant. It is evident from the answer that the judgment to Smith was given to defraud creditors ; as there could be no good reason for giving a judgment bond conditioned to pay $25,-000 when the debt intended to be secured was less than $3000. The object must have been to cover property to a much larger amount, and to keep it under the control of the defendants, or of their brother in law. As Smith is not a party no decree can be made affecting his rights to the property bid in by him under that judgment. The assignment from one partner to the other of the partnership property to, secure the payment of the partnership debts, was a palpable attempt on their part to keep the property under their own control, and it cannot succeed. Unless there was a surplus beyond the debts of the firm, the assignor had no interest in the partnership effects which could pass by the assignment so as to give any greater interest to the assignee than he before possessed. The only effect of the assignment was to exclude the assignor from any control over the property ; and it is even doubtful whether it could have that effect here. I think also the assignment must be considered fraudulent as against the creditors of the firm, in consequence of the trust to pay the assignor’s expenses in obtaining the benefit of the insolvent act, and the' costs of defending suits which might be brought by the creditors for the recovery of their debts.

There must be a decree declaring the assignment fraudulent and void, as against the complainants and other creditors of the firm. It must also be referred to a master in the city of New-York to appoint a receiver of the property and effects of the company, and of the defendants individually; and to collect and apply the same to the satisfaction of the complainant’s judgment. And the defendants must assign and deliver over on oath to the receiver all the property and effects of the firm, and of each of them individually, and all books of account and choses in action relating thereto, as the master shall direct. The receiver is also to be directed to pay out of the proceeds thereof the complainant’s costs in this suit to be taxed, and the amount of his judgment with interest. The proceeds of the property and effects of the firm to be first applied for that purpose.


text:
    Cozine vs. Graham and Bleeker.
    In a suit for a specific performance of a contract in relation to land, if the bill states that an agreement was made, on demurrer to the bill the contract will be presumed to have been reduced to .writing and signed be the parties, or their agents, unless the contrary appears.
    If the objection that the contract was not in writing does not appear upon the face of the bill, the defendant must either plead that fact in bar, or insist upon it by way of defence in his answer.
    Where the defendant in his answer admits the agreement, and does not afterwards insist upon the statute of frauds as a bar, he cannot make the objection; and no proof of the agreement will be necessary.
    If the agreement appears in the bill to be a parol agreement, and no facts are alleged to take the case out of the statute, the defendant may demur to the bill.

      A plea will be overruled if it does not set forth, any new mattes, although the objection raised- by it would have been valid if it had been 'urged, by way of demurrer to the bill, , " ' • '
    April 20th.
    Tbe complainant was the owner of about' 16 acres of land in the. city of New-York. ■ He employed the defendant Bleeker to Sell the same at auction., .'The-land was. sold by the , acre; By the terms of the sale, ten per cent, was to be paid ■immediately, ten per cent; upon the delivery of the dé.ed, and the residue, with interest, was to be secured by bond and a mortgage upon the premises. The-defendant,-Graham became the purchaser, and paid to the auctioneer ten per cent. towards the purchase money. , It being ascertained that one of the avenues of the city .covered a-small part of the 'premises, it was agreed between the parties that such part should be deducted; and..Graham agreed to >pay for -the residue agreeable to the terms 'of sale. Graham afterwards refused to carry the contract into - effect, an,d the. auctioneer declined paying over the money to the complainant without', his ponsent. The bill-"prayed for. a specific performance of the contract, and that the auctioneer might' be decreed to pay over the'sum of $1000 which he had received towards the purchase money, and for general, relief.' -Graham demurred to the whole bill upon the ground that it was not distinctly alleged therein that the contract for the purchase was in writing, and' signed by the defendant or by his legally authorized agents. ■ ■, .

      P. A. Cowdry, for the complainant. ... -

      W. T. M’Coun, for the defendant Graham.
   The Chancellor.

The objection raised by the demurrer in this case, is as to a matter of form and not of sub-- . stance; ' A contract- for the sale of lands is alleged to have been made between the parties, of which the complainant claims a specific performance; but it does not distinctly ap- , ' pear by the bill whether it was o.r was not reduced to Writing and- signed, in such manner' as is required by the statute of frauds. The estate Was sold at adetion, and if the auctioneer did his duty by entering on the conditions of sale the name of the purchaser and the amount of his bid in the usual manner, it was a valid agreement, within the statute which was in fozce at the time this sale was made. It was so held by this court in McComb v. Wright. (4 John. Ch. R. 659 ;) and such is now the settled law in England. , The defendant’s counsel contends, that the complainant must distinctly allege in his bill that the contract was reduced to writing, and was signed by the defendant or his agent legally authorized; and that if he does not, the omission may be taken advantage of by demuri’er. On the other side it is insisted that the defendant cannot demur, unless it appears upon the face of the bill that the contract was not in writing; but that in such case he must either plead the statute or answer the bill. This question has been much discussed in the English court of chancery, and many conflicting opinions have been entertained on the subject there. The first case which I have been able to find is Ash v. Abdy, (3 Syvanst. 664,) which arose in 1678, soon after the passing of the statute. A bill was filed for the specific performance of a parol agreement made previous to the passing of the act. The defendant, supposing the statute to be retrospective in its operation, demurred to the bill. Lord Nottingham thought otherwise, and overruled the demurrer. No question appears to have been raised as to the propriety of bringing the subject before the court by demurrer ; and from the report of the case I presume the facts all appeared on the face of the bill.. The case of Child v. Godolphin, (1 Dick. 39, 2 Bro. Ch. C. 566,) came before Lord Macclesfield, 1723, on a plea, which was overruled and was ordered to stand for an answer. In that case he is reported to have said, that if the bill had stated the agreement generally, a demurrer might have been allowed ; but that if the agreement was stated to be in writing, that the plea m.ust be supported by an answer denying any agreement. The practice appears, however, to have been otherwise, at least for the next fifty years. i_In Howard v. Okeover, before Lord Bathurst in 1778, (3 Swanst. 421, n.) a demurrer was put into a bill for a specific performance. The solicitor general, who argued the case for' the defendant, admitted that'a defence, by: way of demurrer, to a bill of that kind was new, and that the statute of frauds was usually insisted on by way of .plea. .He contended, however, that it appeared by the bill that neither the defendant nor any person authorized by him had ¿signed any agreement ip writing; and that in such a case, what would. be good by way of plea, might also be urged on demurrer. The court overruled the, demurrer _on other grounds ; and that question was therefore left undecided. In Whitbread v. Brockhurst, (1 Bro. Ch. C. 404,) • which came, before the. court six years after,-a plea of the'statute_was overruled for duplicity. And Lord Thurlow’ intimated an opinion that the defendant might have demurred. ' The only agreement set Up in that case, was alleged, in the bill to be in writing, and part performance was also stated. Probably the intimation was right in that case, as all the objections appeared on the face of the bill. If the written agreement, set out in the bill, and- the alleged a.cts of part • performance, did not take the case out of the statute, there was nothing new to be brought before the court by a plea. - In such a case a demurrer appears to be a proper mode of defence., - Whitchurch v. Bevis, (2 Bro. C. C. 559,) came before Lord Thurlow two years after-wards on a plea, and he then again expressed the same opinion! ’ The plea was overruled and ordered to stand for an answer;. But in 1789, hé reversed that decision, on a rehearing, and the plea was allowed. This last" decision seems to be inconsistent with the idea- that a demurrer was the proper mode of taking advantage of , the statute in that ease. For the proper office of a plea is to bring forward fresh matter not apparent ■on the face of the1 bill, and which, if true, is a bar to the.ctimplainant’s action. And a plea which sets forth nothing except, what appears on the face -of the bill, is bad, and must be disallowed, although the defendant might have avail'ed himself of the objection by' demurrer. (Billing v. Flight 1 Mad. R. 230. Cowen v. Price, 1 Bibb. R. 175.) In Redding v. Wilkes, in 1791, (3 Bro. C. C. 400,) Lord Thurlow. allowed a demurrer to'a bill-for a specific performance, although the objection was made that the defence should have' been by plea. Iti that case, however, I think it is evident; front the report, that the promise stated in the bill was not in writing.. The question does not appear to be yet settled in England ; for as late as 1824, where the bill stated an agreement in writing, but did not allege that it was sighed by the defendant,.'or by any one authorized by him, a demurrer to the bill was Overruled. . The counsel for the complainants in that case insistéd that it was hot necessary to allege in the bill that it was signed, or even that it was reduced to writing. The vice chancellor said if it was not signed it would not be an agreement, and he would therefore ■ presume it was-signed, until the contrary was shown.. . .

The rule of pleading on this subject is well settled in the courts of law, and I do not see why the principle of that rule is not equally applicable to this" court. It is there held that the statute did not alter the form of pleading; that if an agreement or contract is stated in the declaration to have been made, it. is not necessary to allege that' it was in writing, as that will be presumed until the contrary appears. If the agreement' is denied, the plaintiff must produce legal evidence of its existence, which can only be done by producing a written agreement duly executed according to the provisions of the statute. If the agreement is admitted by ttie pleadings, no evidence to prove its existence is necessary,- and the court .never enquires whether it was or was not in writing. Even there I presume the defendant might demur, if it distinctly appeared by the declaration that the agreement or promise was one which was not'only legally binding on him. There was formerly some difficulty on this subject in chancery, on account of the idea which prevailed that the court was bound to carry into effect a parol agreement admitted by the answer, although the defendant at the same time insisted that it was not legally binding, as being within the statute. It now appears to be well settled that the defendant may admit the existence of the parol agreement, but insist upon the statute in his answer as a bar to any relief founded thereon, unless there has been such a part performance as to take the case out of the operation of the statute. (Willes on Pleading, 562, note.) If the agreement, as stated in the bill, appears to be a parol agreement only, and no. sufficient grounds are alleged to take the case out of the statute, the' defendant may -by demurrer-object to any relief founded thereon.. But if it, is stated generally that an agreement or contract was made,' the court will presume it. was a legal contract until the contrary appears; and the defendant must either plead the fact that-it. was not in writing, or insist upon that defence in his answer. He may then require the production of legal evidence to prove the existence of the contract. If he admits the agreement in his answer, and does not insist upon the statute, no .evidence of the agreement will be necessary, and the decree will be made upon that admission. (Talbot v. Bowen, 1 Marsh. Kent. R. 437.)

. This view óf thé case being conclusive against the demurrer, it is not necessary to examine the other question raised on the argument. The demurrer must be overruled .with • costs; and the-defendant Graham must pay those costs anil answer the complainant’s bill within .twenty days after service - of notice of the order o verruling the demurrer, or the bill may .be-taken as confessed as against him." .


text:
    Dumond vs. Sharts.
    Where B. agreed with S. to exchange farms with him, and S. agreed to pay , D. at the rate of $37,50 per acre for the difference in quantity between the farms, and D. and S. also at the same time entered irito an agreement by ■which they bound themselves to correct any error which should subse- . quently be discovered as to the mumber of acres contained in either of the farms upon a.survey thereof, provided the correction was-made by the first day of April then next ensuing; and D. afterwards", but after' the first day of April; caused the two farms to he surveyed, and ascertained that, there had been an error as to the quantity in the farm sold to S. by D., S- having paid for a less number of acres than fhat farm contained, and S. refused to .-correct the mistake; it was, held that the time mentioned in the^ agree. meat was not -of the essence of the contract, and S. was decreed to pay the difference between the estimate and the actual number of acres, ac. " cording to the agreement, together with the costs of the. suit.'
    ■ Where there is a conveyance of a farm, and a turnpike road- passes across the farm and the road is not excepted from the conveyance, the purchaser ' has no remedy in chancery for a compensation .for the land covered by the road; his remedy, if any, is at law upon the covenant of seisin.

      The laying out of a public highway across a man’s land does not divest the ti. tie of the owner, but the title remains in him, subject to the public right of way over the same; and whenever the road ceases the land will revert to the original owner, or to his assignees.
    April 20th.
    In January, 1818, Dumond agreed with Sharts to exchange his farm in Hillsdale, supposed to contain 217 acres, for the farm of the latter, lying in Chatham, which was estimated at 150 acres. Sharts agreed to pay the complainant at the rate of $37,50 per acre for the difference in quantity between the two farms. Conveyances were accordingly executed, and the defendant paid the difference between 150 and 217 acres, at the rate agreed upon by the parties. Another writing was also executed by them at the sáme time, by which it was agreed that if upon a subsequent survey of the farms any error should be discovered as to the number of acres, that such error should be corrected, provided the correction was made on or before the first of April then next. Dumond afterwards caused both farms to be surveyed ,* when it was found that the Hillsdale farm contained more than two hundred and seventeen acres, and the Chatham farm less than one hundred and fifty acres. But the surveys not having been made provious to the first of April, 1818, Sharts refused to -correct the mistake. In 1823, Dumond filed his bill to obtain payment for the difference between the estimated quantity of land in the respective farms and the actual quantity as ascertained by the surveys. The late chancellor decided that the time mentioned in the written agreement was not of the essence of the contract ; and that the defendant must pay the difference between the estimated and actual number of acres, according to his agreement with the complainant, together with the interest thereon from the commencement of this suit. And he directed a reference to ascertain the quantity of land in each farm, and reserved the question of costs and all further directions until the coming in of the report; By the report of the master, it appeared that the excess in the Hillsdale farm was six acres, and that the deficiency in the Chatham farm would be two acres and a half and seventeen perches, if the land covered by the Chatham turnpike road was considered a part of the farm; but if not, then the deficiency in that farm would be about six. and a half acres. '

      A. Vanderpoel, for the complainant!'

      A. L. Jordan, for the defendant.
   The Chancellor.

The only questions before me at this time are as to the ¡and covered by the road, and as to costs. It appears that the .road formerly. laid out for The Chathan Turnpike Company runs partly through the farm , and partly on one side thereof. And I infer from the evidence in the cause and from the master’s report, that the land covered by the road is included in the general boundaries of the farm as described in the deed to Dumond; and that it is not excepted out of the conveyance. If such is the fact, Dumond has no right to compensation in this suit oh account of the land covered, by the road. If .there is a covenant of seisin in the deed, perhaps he may recover thereon in a court of law. But no such claim is made in the complainant’s bill, and no sufficient foundation therefor is contained in any of the pleadings. Neither- is there any .evidence before the. court to-enable me to ascertain whether the - fee of the-land over which this road passes is now in the complainant or in the state. In general, the laying out of a public highway over a man’s land does not divest the, title; which still remains in him subject to the 'public right of way over the land. In such cases,-whenever the road is taken up or altered, the owner is restored to the full enjoyment of the land which is no longer wanted for the public use. But. by the act .of April,.-1804, lands purchased by The Chatham Turnpike Company for the use of their road, or condemned for the same purpose and paid -for by the company, became absolutely vested in the corporation. And. under the act of 1820, the -title to such lands is now vested in the people, and cannot revert to the original owners thereof or their assigns, except by a grant from the state. There is in this case, how- ■ ever, no evidence that any land included within the boundar síes of the Chatham farm was either voluntarily conveyed to the company, or condemned for the use of the road and paid for under the act. Besides the agreement as to the number of acres in these farms must be construed with reference to the boundaries thereof as described in the deeds. The covenants have undoubtedly provided the proper remedy for a failure of title, as to any part of the land included within those boundaries. The complainant is therefore, under the decision of the late chancellor, only entitled to recover from the defendant payment for eight acres, two roods and seventeen perches of land, at the rate of $37,50 per acre, with interest from the 17th of November, 1823.

I think the complainant is in this case entitled to his costs against the defendant. The latter refused to correct the error in the original estimate of the farms, although the claim of Dumond was perfectly just and equitable under the agreement of the parties. Instead of doing so, he insisted upon the technical objection that the day had passed before the survey was made ; and by that means compelled the complainant to seek relief in this court. If a party resists an equitable claim under such circumstances because he supposes the laws afford no remedy to the injured person, he must pay the costs of the litigation, if in the end the law is found to be against him.


text:
    The Fulton Bank vs. E. S. Beach and others.
    On an appeal to the court for the correction of errors, a counsel fee on the motion to file the petition of appeal is not taxable, the order to file the pe. tition being a common order; and the solicitor is only entitled to fifty cents for attending to have the same entered.
    The signature of only one counsel is necessary to a petition of appeal or to the answer to the same, and only one counsel fee is taxable for that service.
    The solicitor is to be allowed for the draft of original matter to be inserted in a case for the court of errors on appeal; and for two written copies of the case including the matter not original.
    No allowance can he taxed for abbreviating the case ; for if properly made, it is of itself an abbreviation of the pleadings and proofs, &c.
    The points for the court of errors constitute a part of the case; and should be estimated as a part thereof upon the taxation.

      Only one counsel or solicitor’s fee is to be allowed for the whole decree or order ; and it is improper to tax separate fees for each distinct point or special direction contained therein. • , ■ . ■ . ■
    Where there are separate appeals entered at different ■ times in relation to two distinct orders of different characters, the solicitor is entitled to an allowance for all the services necessarily rendered on each appeal until the proceedings upon the appeal are consolidated by the court.
    The'proceedings on the remittitur to make the decree of the court of errors a decree of the court helow, and the enrolment of the decree and the ex-cution for the 'costs awarded by the appellate court, -are a necessary part of the costs on the appeal, and are to be taxed in the same bill with the other costs and annexed to the enrolment of .the decree of the court of errors»' .
    April 20th
    In this casa the defendants entered two. separate appeals to the court for the corection of errors, from the orders of this court of" the 3rd of March, .1829, refusing permission to re-examine a witness and of the 4th of; August, in the same year, refusing them leave to amend their answer. (1 Paige’s Rep. 429.) After the answer to the petition of appeal from the first order was filed, and before, the second'appeal was made, the complainants made up and printed a case on the first- appeal. They afterwards made up and printed a full case on the last appeal, which included a great portion of the matter contained in the first case. Both appeals were argue.d'in the court of errors in September, 1829, and both the orders "of the chancellor appealed’ from were affirmed with costs. ' But the- court of errors deeming that a great part- of the second case was useless and unnecessary, made it a part of their decree-that rib allowance should be made to .the respondents on the taxation of costs for any part of the second case which was contained iri' the case’ made upon the first appeal. The taxing officer was also prohibited by the decree of the court of errors from allowing any charge on the second appeal-for. services which were not actually and necessárily performed, upon that appeal. That court also con-. solidated the orders of affirmance, and made only one decree of. affirmanóe as to both appeals.- The respondent’s solicitor made out upon these appeals separate bills of costs. The one was .taxed at $536,42, and the other at $208,99. The defendants appealed from the decision of the taxing officer as to mapy of the items allowed by him upon the taxation. The nature of the objections to the taxation are stated in the opinion of the chancellor.
   The Chancellor.

One hundred and'seventy-five items in these two bills of costs were originally objected to before the taxing officer. He has sustained the objections, either wholly or in part as to one hundred and forty-five of those items; and has stricken from the bills more than $1350. About fifty items are still objected to by the defendants; who insist that those items should have been disallowed entirely, or still further reduced by the taxing master.

It will be necessary to examine several of the items claimed in this case, for the purpose of seeing whether they were taxable against the appellants, even if the services were performed. In the bill of costs on the first appeal the following items are objected to as illegal or overcharged: “ Counsel fee on motion that appellants file petition of appeal, $1,25. Solicitor attending, $1.” The appellants insist that nothing should be allowed for the first item, and only 50 cents for the last. In this they are undoubtedly correct. Under the 26th rule of the court for the correction of errors, the order to file the petition of appeal is a common order, and is to be entered by the clerk of course on the written request of the solicitor; and the solicitor is entitled to fifty cents only for attending the clerk to have the order entered. The clerk was entitled to ten cents for filing the request; but the affidavit was unnecesary under that rule. The third, fourth, fifth, sixth and seventh items are for services not usually performed, and ought not to have been taxed without evidence that they were actually performed. “ Drawing statement of the case for counsel, &c, $2,50. Attending two counsel with the same for advice, $1,50.” These items were found in the fee bill of 1813, but were stricken out of Chancellor Kent’s bill in 1818, on the ground that the charges were for services merely fictitious, which were seldom if ever performed. (Assembly Jour. Feb. 25, 1818.) They related only to answers to bills in this court, and were never applicable to an answer to a petition of appeal. The items embraced in the tenth and eleventh objections appear to be legal charges, and the services- must necessarily have, been performed. The an- . swer to the petition of appeal must be signed by counsel, The language of the: act of 1813 shows that the legislature contemplated, the signatures of two counsel to the petition of appeal and to the answer. ■ In the revised statutes the language is altered, -and a distinction «is made between-the petition of appeal, or the answer to the .same, and the case for the court; showing that the allowance is to be for one counsel only in the first case, and for two counsel in the last. The . twelfth and thirteenth objections relate to services which are úsüally, performed, and, I presume, must have been in this case.' The fourteenth relates to the number of written copies of the case for which the solicitor has a right to charge by the folio. .The case of the respondents on the first appeal has been swelled to the extent of 644 folios ; of which 125 are said to be original matter, and the residue consist of copies in has'c verba of the pleadings, depositions, petitions, affidavits, &c. The master has allowed for a draft and three copies of the .original matter, and for three copies of the pleadings and other matters not original to be inserted therein. The policy of .the legislature has been to pay liberally for services actually and necéssarily performed, but to discourage the multiplication of-copies of papers or other fictitious services, which are never made or performed except for the mere purpose of increasing a. bill of costs. In this instance the number of copies is fixed by the fee bill and * cannot be increased. The solicitor is entitled to the draft of the original matter to be inserted in the case; to one copy of such draft, together with the matter not original, to be signed by counsel; and to one . other copy for the printer; No more written -copies are necessary, as the one signed by the counsel is retained by the solicitor if it- is in fact never made before the case is printed.-' No allowance ■ cari be taxed for abbreviating the case for counsel; for if properly drawn, the case itself is, nothing but an abbreviation of the proceedings in the .cause. The points properly constitute a .part-ofthe-case required by the sixth and twelfth rules of the court for the correction of .errors, - and should be estimated asa part'thereof. No separate items for drawing, signing, copying or serving points,are allowed by the fee bill, or required by the practice of the court. Under the fee bill of 1813, the solicitor was allowed for the draft of his brief by the folio: and for one copy thereof for the use of counsel. By the revised statutes, he is allowed but two dollars for the draft and nothing for the copy. In this case the" allowance must be according to the former rate. The solicitor has charged his brief on the first appeal at 250 folios, and on the last at 150. He also claims to be allowed for three copies of each. The taxing officer has reduced each brief to 100 folios, and allowed for two copies of both, amounting in the whole to $64. It is still objected by the appellants that the amount allowed by the master is enormous and oppressive. Neither of these briefs have been exhibited to the court to enable me to judge whether the number of folios taxed by the master were proper or necessary. It seems to be a misnomer to call either of them a brief, on a motion to amend an answer or to re-examine a witness. I must therefore direct the officer on re-taxation to strike out the allowance for the second copy of each, and to look into them and see whether the ought not still further to be reduced. The twentieth and twenty-first objections relate to the copy of the chancellor’s opinion on the last motion, printed for the use of the court on the first appeal. This opinion is contained in the case made on the last appeal, and the respondents are not to be allowed for two copies for the printer, or to the expense of printing it twice, as that was unnecessary. These items must be stricken out of the first bill. The master has allowed for “ solicitor and counsel attending on motion to affirm decree $2,25,” and the" like sum for attending on motion for judgment for the respondents. These charges are for one and the same service, and both should not have been allowed. The charge for solicitor and counsel attending on motion for remittitur should have been disallowed. No such motion is ever made ; it follows of course, on the affirmance or reversal of a decree. The allowance of one dollar to the solicitor for obtaining the remittitur, and attending this court therewith, is all to which he is entitled. I have understood that one of the former taxing officers has been in the habit 0f allowing a separate solicitor’s and counsel fee as to every distinct point of direction contained in an order or decree of this court, or of the court for the correction of errors ; and that a similar allowance has been made for every day’s attendance on an order of reference. Both allowances are improper and illegal; and the latter was by a former chancellor made an express ground of complaint to the executive against the conduct of certain masters who continued to tax the same, notwithstanding the decision of the court to the contrary. (Assembly Journal, 28th January, 1812, p. 11.) The items objected to in the bill on the second appeal depend upon the same principles, except as to services since the, argument. The appellate court thought both appeals should have been argued together, as most of the principles embraced in the arguments were equally applicable to both. Hence they considered the repetition of the same matter in the second case, which was embraced in the first, as a useless expense, and refused to permit it to be taxed. But the questions were not in all respects the same on each appeal, and the taxable fees to counsel never in fact are equal to the amount actually paid. As these were separate appeals,brought at different times, and in relation to orders of a different character, I think the usual costs on each, previous to the decision of the court, should be allowed; deducting however, for such parts of the case and brief as were unnecessarily.repeated on the second appeal. No allowance must be made for duplicate proceedings after the argument. The court decided both appeals together, and directed them to be consolidated in the order of affirmance, to save the useless expense of two remittiturs, and of separate orders, enrolments and executions in the court of chancery, to carry into effect their decision. The party should have obtained one remittitur, reciting both appeals, and containing the decision of the court thereon, as consolidated and entered in the minutes of the clerk. The filing the remittitur in this court and the order consequent thereon, and the enrolment of the decree of the court of appeals and the execution for the costs awarded by that court -are a necessary part of the costs of the appeal, and must be incorporated into the same bill and annexed to the enrolment of the decree here.

The bills of cost in this case must be redrawn and relaxed upon the principles above stated, leaving out the objectionable items and those which were before rejected by the taxing officer. The respondents’ solicitor is also to be permitted to add to the first bill of costs the additional expense of reciting both appeals in the remittitur, and of the enrolment of the decree to carry into effect the decision of the appellate court. The costs may be re-taxed by the vice chancellor of the first or of the third circuit on the usual notice.


text:
    Lynde vs. Budd and others.
    Where D. in April, 1818, sold land to B. an infant, and the infant upon the execution and delivery of the deed to him gave to D. a bond and mortgage upon the premises for the purchase money; and the deed and mortgage were both duly acknowledged and recorded, and one half of the purchase money was paid to D. by B. at the time of the purchase; and B. the infant, immediately went into possession of the premises, and continued in possession until after he arrived at the age of 21 years; and then sold the same to R. who conveyed them again to other persons; and all the purchasers had Ml knowledge of the mortgage, which was assigned by D. to L. in 1819; it was held, that the mortgage was a legal charge upon the land, and that if the premises did not sell for a sum sufficient to discharge the amount duo upon the mortgage, with the costs of the suit, B. would be liable to pay the balance.
    The contract with the infant was not void, but only voidable at his election,, when he became of age.
    He might then have relinquished the property, and claimed a re-payment of the money paid by him to the grantor at the time of the purchase.
    But by continuing in possession after 21, and conveying the land with warranty, be affirmed the contract, and made himself liable for the payment of the residue of the purchase money.
    The deed and mortgage being executed at the same time formed but one contract ; and the infant could not affirm such contract as to the deed and avoid it as to the mortgage.
    April 20th
    In April, 1818, J. Dearborn sold and conveyed to the defendant Budd, then being only 20 years of age, a lot of land in Homer, for the consideration of $600. At the same time Budd executed and delivered to Dearborn a bond and mortgage for the purchase money, one half thereof to be paid immediately, and the residue on the first of June, 1819, with interest. The deed and mortgage were both duly acknowledged and recorded, and $300 of the purchase money was, on the day of the acknowledgment, paid to Dearborn by Budd. Budd went immediately into possession of the premisses, and continued in possession thereof until after he became twenty one years of age. Budd afterwards sold and conveyed the land to the defendant Rouse. The other defendants are subsequent purchasers from Rouse. All the defendants purchased with full knowledge of the mortgage, which was assigned to. the complainant by the mortgagee in 1819. The only question now raised was, whether Rouse and the purchasers from Him took the land discharged from the lien, by reason of the infancy of Budd, at the time the mortgage was executed.

      N. Dayton J. A. Collier, for the complainant.

      Henry Stephens, for the defendants.
   The Chancellor.

The contract with the infant in this case was not void, but only voidable, at the election of the grantee when he became of age. He might then have relinquished the property to the grantor, and claimed back the money which had been paid at the time of the purchase. Willis v. Twambly, 13 Mass. R. 204.) But by continuing in possession after he became twenty one, and finally selling and conveying the land with warranty, he affirmed the contract. If an infant exchange lands, and after he becomes of age continues to occupy the lands taken in exchange, .he affirms the bargain and the exchange becomes perfect. (Co. Litt. 51 b. 2 Vern. 225.) In Kelley’s case, (I Brownl. R. 120,) where an infant took a lease of land, rendering rent, and continued in possession after he became of age, he was held personally • liable on the covenant for the payment of the rent. In this case, the deed and mortgage being given at the same time are to be construed together, as forming only one instrument or contract. (1 Paige’s R. 455.) The infant cannot avoid one part and affirm the other. If, when he came of age, he had elected to avoid the bond and mortgage, the deed also would have been avoided. By continuing in possession, and conveying the land, he affirmed the whole bargain, and made himself legally liable for the payment of the residue of the purchase money. The cases of Hubbard v. Cummings, (lGreenl, R. 11,) and Roberts v. Wiggin, (1 N. H, R. 73. ) are direct-. ly in point on this question. The case of Badger v. Phinney, (15 Mass. R. 359,) also shows that an infant- cannot disaffirm the contract, and at the same time retain the fruits of the bargain- which he has made while under age..

The mortgage in this case is therefore a legal charge upon the land ; and there must be the usual decree directing a reference to complete the amount due, and for a sale of the premises on the usual notice on the confirmation of the master’s report. There must also be a decree over against Budd for the balance, if the premises do not sell for enough to pay the amount reported due, with the costs of this suit.


text:
    Kingsland, assignee, &c. vs. Roberts, executrix, &c.
    Where a bill was filed to settle the accounts of a joint adventure, more than twenty years after the whole subject' of the controversy had arisen, and where the justice of the claim had not been admitted during that time the staleness of the demand was considered a good reason for refusing any relief to the complainant.
    April 20th.
    The complainant filed his bill in this suit for an account, and .the cause was submitted on the pleadings and proofs. The facts in the case sufficiently appear in the opinion, of the chancellor. ‘
   The Chancellor.

This bill was filed in December; 1825, by the assignee of R. Roberts, an insolvent debtor, to recover from the executrix of M. Jones a balance alleged to be due from the latter, previous to 1805. R. Roberts, M. Jones and R. Simons were owners of the brig Amiable Creole in 1803, each owning one third. The brig was captured in 1804 ; and being insured, R. Roberts received the insurance money, and, as he alleges, paid the other owners- their share of the money, leaving certain debts for shpplies furnished the brig unpaid. This settlement was in September, 1804,- and the claim in this cause is for Jones’ share of what Rob* erts says he paid on account of the ship,' in the latter part of the same year. R. Roberts was discharged uuder the insolvent act, in July, 1,817, and assigned his property to Kmgs]anji Jones.died m November, 1824, and Simons the May preceding. It is evident, from exhibit No. 4, that the whole "subject matter of this controversy arose oti and previous to the 12th of January, 1805 ; nearly twenty one years before this suit was commenced. Jones lived more than nineteen years after that time and it is evident from the exhibits produced that he never, during that time, could have admitted the justice of the claim. I am" inclined to think that this is a case where an action of assumpsit would haye been sustainable, if there was any justice in the claim ; and, consequently that the statute o'f limitations, would be a good bar. But at all events, the staleness of the demand, and the' length of- time which has elapsed, are sufficient to induce this court to refuse its aid at this time. The suit is not" commenced until all those who could explain the transaction "are in their - graves ; and the original party making the claim is the only witness to substantiate a single item of the -account. - It also appears - that-he was the person who applied to the counsel to commence the suit in the name of his assignee. Although the executrix has been fortunate enough to find his receipt in'full dated in 1806, about one year after the controversy arose, this witness attempts to explain it away. In this, however,, he has not succeeded to the satisfaction of the court. The receipt is for two hundred and twenty five dol-. ■ Iars in full of all demands against the brig. Considering all the facts of this case-, and the frequent mistakes this witness made in other parts of his examination, Jam satisfied I should be. doing injustice to the heirs of Jones if I trusted to his recollection to explain1 away this receipt- Although Jones frequently consented to submit the justice of the claim of Roberts to his neighbours, it is not to be inferred from that circumstance that he admitted its ’correctness. I think the con- . ' trary presumption would tie the most reasonable.' The owners of different interests -in a ship are tenants in common and. not partners; and each one is. liable for his portion of the re- ■ pairs, &c. If Roberts paid to" Simons his share of the insurance money before his part of the debt was settled, it does not follow that Jones was bound to pay the half of his share of those debts if he afterwards became insolvent. If Roberts paid a debt due from himself and his joint owners, he should have called on Simons for his share while he was responsible. .

The bill must be dismissed, with costs.


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    Ogden and others, executors, &c. vs. Smith.
    Where R. H. appointed by his will three .executors and devised to them alt his real estate upon several trusts, one of which was, to execute all proper deeds and take the proper measures for fulfilling all contracts entered into by the testator, or by them for the • sale of any part of' his real estate; and the testator declared in his will,, that in case one or more of his exec- - utors should die before himself, or should decline- to execute the .trusts, if one so died or declined, the remaining two should nominate another person as their co-executor and trustee ; and if two of them should die or decline, then the testator declared that his sons should nominate one person, and his daughters another, and the persons so nominated, if approved by the remaining executor, should become executors and trustees under the will; and if all the executors should die or decline, that then the testator’s sons and daughters might choose two persons as aforesaid as executors and trustees, ' and which two persons might nominate and choose the third; and after the making of the will, the testator made a codicil thereto, and by it appointed two additional executors and trustees of his will, and then re-published his said will with the codicil as a part thereof; four of the executors, in February, 1830, proved the will, and one renounced; it was held, that unless a greater number than two declined the trust, it would not be neces- ’ sary to supply their places in the manner prescribed in the will"; and that the four who had qualified, possesséd every necessary power to execute all the trusts mentioned in the will. .
    Where a part only of the executors qualify and accept the trust, those who qualify will have full authority without the others to execute a power to convey real estate, which is by the will conferred on the executors named therein.
    Executors who do not prove the will, are superseded by the grant of letters testamentary or of administration to others; and they cannot dispose of any part of the estate until they appear and qualify as executors.
    April 21st.
    Richard Harison late of the city of New-York, deceased, being in 1827 seised in fee of a lot of land in the county of Jefferson, contracted .to sell the same to the defendant, who immediately entered into possession of the lot, and has continued in possession ever since. In 1825, Mr. Harison made and published his will, and thereby devised all his estate, real arid personal to his executors, T. L. Ogden, W. Johnson and B. Robinson, upon- the trusts therein mentioned. The first trust expressed in the. will was, that the executors and trustees, either personally or by attorney, should execute all proper deeds, and -take proper measures for, fulfilling all contracts entered into by the testator, or by themselves,,for the sale of any part, of the testator’s-real estate. The will, after specifying other trusts, contained the following clause : “And whereas, it may happen that one or more of my executors may die before me, or decline to execute the said trusts, I do hereby declare that, if only one of them should die, or decline the said trusts, that the remaining two shall and may nominate another person whom they may think-fit, to be the third executor and trustee. - But if two of " my said trustees" should die, or decline to execute the said trust's, that then my ■ sons, or a majority of them, shall and may nominate one person, and my daughters, or a ma-. jority of them, another, who if approved of by the then executor, shall become executors and trustees under this my will. And if all the said before niimed executors shall die before me, or decline to execute the said trusts, then and in such case two other persons, may be-chosen by my sons and daughters respectively, as aforesaid, to be executors and', trustees under my1 will; and the said two persons may nominate 'and choose a third to be joined with them in the execution of'the said'trust's. And in every case the person or persons to be so nominated and chosen, as aforesaid, shall take, have arid possess all the estate, rights and powers, and be subject to all the duties which any of the trustees' named in this my will would have, or be entitled or subject to, as fully and éf-, fectually as if they, had been named.as trustee and executor, or trustees and executors, in and by my said will.” In 1827, -and after the aforesaid contract was made with the defendant, the testator made and published a codicil to his. will, and in such codicil nominated and appointed his friend Clement C. Moore and his son William H. Harisón executors of the will, and .trustees under it, with all the powers which had been conferred upon his other executors ; and he thereby republished the original with the said codicil annexed. The testator died in December, 1829, seised of the land contracted to be sold to the defendant. Four of the executors and trustees in February last proved the will; and W* Johnson, the remaining executor and trustee, renounced in the manner prescribed by the revised statutes. The whole of the purchase money, which the defendant agreed to pay for the land, became due on the first of February last. The complainants tendered to the defendant a deed, executed by themselves and all the heirs at law of the testator, containing the usual covenants of warranty as to the title, and demanded from the defendant payment of the purchase money. The defendant refused to accept the deed, or to pay the purchase money, upon the ground that no person had been substituted as executor and trustee in the place of W. Johnson, either by the two other executors named in the original will, or by all the executors who had qualified; contending that the deed would not be valid, unless some person was thus substituted as executor and trustee, and joined in the conveyance.

      W. H. Harrison, for the complainants,
    insisted that by the appointment of the two additional executors, the testator intended to revoke the clause in the original will for supplying vacancies. That he had either altered his mind as to the number of executors and trustees, or had intended to provide against the contingency of vacancies by increasing the num- > ber of executors and trustees.

      T. W. Ludlow, for the defendant.
   The Chancellor.

The true construction of this will and codicil, taken together, appears to be this: By the original will the te.stator intended that three executors should actually accept the trust; and if any of those named by him declined, provision was made to supply the vacancies.' In the codicil two others are added, without any new direction as to supplying vacancies if any of them should renounce the execution of the .will. The original intention of the testator will therefore be carried into effect by permitting any number of the executors, not less than three, to qualify and execute the trust. If three or more of them had renounced, the number must* have been increased, so as to complete that number-in the manner specified in the original will. But as' four have qualified, there is no necessity of supplying the place of the fifth, who has renounced the trust. The" learned commentator on American law, in the last volume of his valu able treatise which has just been- published, supposes that the provision authorizing the executors who prove the will to convey without the others has been repealed in the recent revision. (4 Kent’s Commentaries, ,320.) And he very .properly declares such an alteration of the law to be injudicious. His opinion is founded upon the construction of the 106th and 112th sections of that title of the revised statutes which treats of the nature and qualities of estates in real property, and the alienation thereof. (1 R. S. 735.) But he has evidently over-, looked the fifty-fifth section of the subsequent title, relating to the powers and duties of executors, &c. in which the provision of the statute of 21 Hen. 8, ch. 4, is re-enacted, almost in the same words as in the former statutes of’this state. (2 R. S. 109, § 55.) The 15th and 16th- sections of the title, relative to the granting of-letters testamentary and of administration, (2 R. S. 71,) declare the executors" who do not prove the will, and who are not named as such in the letters testamentary or of administration, to be superseded thereby, until they shall appear and qualify; and they are prohibited from disposing of any part of the estate. These provisions limit and control the 112th section of the article relative to powers contained in a preceding part of .the revision. The power in- that case is only vested in the executors who prove the will," and they must all join in the execution of the power. In this case the power to execute conveyances, given by, the will to the executors, was duly executed by those to whom letters testamentary -were granted since the revised statutes went into operation. Their deed conveyed a good and valid title to the purchaser, and he is bound to accept the same and to pay the balance due agreeably- to. ¡£he contract . ■


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    Bedell vs. Hoffman and others.
    A.bill of interpleader, strictly bo called, is where the complainant claims no relief against either of the defendants, but only asks for leave to pay the money or deliver the property to the one to whom it of right belongs, and that he may thereafter be protected from the claims of both.
    But a bill in the nature of a bill of interpleader,may be Sed to redeem and be let into possession of mortgaged premises.
    And where from conflicting claims of the defendants the complainant. is compelled to resort to such suit, he will be allowed his costs.
    On a bfll in the nature of a bS of interpleader, costs are not a matter of right, but rest in the discretion of the court.
    Bills of interpleader should not be filed except in cases where the complainant can in no other way be protected from an unjust litigation in which he has no interest.
    And where a bill of interpleader is unnecessarily filed, the complainant will not be allowed his costs out of the fund.
    The complainant gave a mortgage to H. Eckford to secure the payment of $1800, in fact loaned from The Life and Fire Insurance Company of New-York ; but which Eckford negotiated as agent and took the securities in his own name. • Six hundred dollars of this debt was paid previous to the failure of that company. At the time of the failure one note of $1200 remained unpaid, for which the bond and mortgage of the complainant was held as security; and which note,. together with the bond and mortgage and certain other demands due to the company, had been assigned to Josiah Barker, in trust and for the benefit of Jacob Barker, to secure the latter for certain alleged claims of his against the company. After the appointment of the receivers of that company, the amount due on the mortgage was claimed by them from the complainant. Jacob Barker also ' claimed the amount of the mortgage under the assignment to him and offered if the complainant would pay him the money to give the complainant ample security to indemnify him against the claims of the other parties. The complainant declined paying the money to Jacob Barker»,, and filed his bill in the nature of a bill of interpleader in this cause against Eckford, the receivers of the Life and Fire Insurance Company, and- the two Barkers ; and prayed in said Bill that the defendants might interplead- and settle the right between themselves ; 'that the note and bond and mortgage might be .delivered up and > cancelled upon his paying into court the amount-.due thereon ; and that the proper parties might execute a.discharge of the bond and mortgage in order to have the same cancelled on record. Éckfórd having no personal interest in the suit,, suffered the bill to be taken as' confessed againsi him. The receivers put in an answer, claiming ■ the debt for the benefit of the creditors and stockholders of the company generally ; and .the Barkers by their .answer claimed it as belonging to Jacob Barker under the • assignment.. . '

      May 4tfc;

      F. B. Cutting, for'the complainant.

      M. Hoffman, for the receivers.

      D. Selden, for the Barkers.
   The Chancellor.

A bill of interpleader strictly so called is where the complainant claims no relief against either of the defendants, but only asks that he may be at liberty to pay the money or deliver the property to the one to whom it of right belongs, and may thereafter be protected against the" claims of both. (Milchell v. Hayne, 2 Sim. & Stu. 63.) In such cases, the only decree to which the complainant . is entitled, is a decree that the bill is properly filed ; that he be at liberty to pay the funds into court and have his costs and that the defendants interplead and settle the matter between themselves. But a bill in the nature of a bill of inter-pleader to redeem and,to be let into the possession of mortgaged premises, may be filed. And in a case where the complainant had been obliged to resort to such a suit in consequence of the conflicting claims of the defendants, ■ he was .allowed his" costs, contrary to the usual practice in suits to redeém. (Goodrich v. Shoebolt, Preced. in Chan. 333.) Costs in such cases however rest in the discretion of the court, and are not a matter óf right; and where the complainant is in full possession of the mortgaged premises, arid cannot be dispossessed by an action at law in favor of either of the parties claiming the mortgage money, the party who has offered to receive the amount due and give an adequate indemnity, ought not to be charged with the complainant’s costs, if in the end it appears he was in the right. The filing of bills of interpleader ought not to be encouraged; and they should never be brought except in cases where the complainant can in no other way protect himself from an unjust litigation, in which he has no interest. The defendants in this case were actually litigating their rights at the time this bill was filed. The complainant was in possession, and I do not understand that either party had commenced any proceedings against him. I think, therefore, that he should have awaited the result of the litigation already commenced, or have accepted the indemnity offered by one of the parties, and paid the money to him. The other parties are officers of the court, and ought not to be personally charged with costs, in any event, while they are acting in good faith; neither should, the fund in their hands be subjected to the expense of useless litigation. The complainant must be relieved, but without costs.

It was proper to make Eckford a party for the purpose of having the mortgage properly cancelled, as it stood in his name, although in trust for one of the other parties. He had no interest in the suit, and did right in not making any unnecessary expense. No other decree can be entered against him, than to have satisfaction of the mortgage acknowledged by him, under the direction of the court. The mortgage must be discharged, and the bond and note given up and cancel-led ; and the money in court must remain to abide the final decision of the cause between the other defendants. It is perhaps not necessary to have any further proceedings between the defendants in this cause for the present, as their rights are in the course of litigation in another suit. The question of costs and all other questions and directions, as between them, must be reserved; with liberty to either to apply hereafter for an issue "or a reference to settle those questions, if necessary, as they shall be advised.


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    Pendleton and wife vs. Fay and others.
    Where the power to sell given to executors by the1 will is special, it can only be exercised in the mode prescribed by the testator.
    Where an executor was authorized to sell the real estate at public vendue to pay off the legacies to the children of the testator as they became of age, and he sold the property at private sale to raise money for his own use, before the legacies became payable, the sale was held to be void.
    A purchaser, wherever he has sufficient information to put him on inquiry, in ' equity, is considered as having notice; and in such a case he will not he deemed a bona fide purchaser.
    Where an insolvent trustee assigned a mortgage purporting on its face to be given to him as trustee, partly in payment of his own debt to the assignee and, partly for cash which he applied to his own private use, the assignee was held to be chargeable with notice of the misapplication of the trust fund. 1 1
    If a mortgage while .im the hands of the mortgagee is not a valid lien on the property, it will not be valid in the hands of the assignee of such mortgage.
    Where a party takes a conveyance of trust property to enable the "trustee to raise money thereon for his own private purposes, he is chargeable1 with the costs of a suit brought by the cestui que trust to set aside such conveyance, ,
    Frederick Davoue, who died in 1809, by his will made provision for the education of his younger children; and gave to his sons Frederick, Benjamin A. and James B., legacies of $5000 each, and to his son John B. a legacy of $5500, when they became of age respectively; and to his daughters Ann, Mary Egbert, and Harriet, legacies of $5000 each, when they became of age, or were married; all of which legacies were directed by the testator to be paid out of the bulk of his estate. By a subsequent clause of the will the testator directed that the legacies to Mary Egbert, and Harriet should be at all events $5000 each; and if the estate should prove insufficient to pay all the legacies, that a deduction be made from the legacies given to the other children to make up those legacies to' the full amount. He likewise directed that so much of his real-estate as should be necessary to furnish the. sums' he had bequeathed to his children, should be sold at public vendue when-they should respectively be entitled to the same; and that the rest of his real estate should be leased or -rented by the executors to, the best advantage. He further ‘ directed that when his youngest child attained the full age of twenty-one years, all his real estate and property not otherwise disposed of should be sold at public vendue, and the proceeds of the sale, together with his personal property, should be divided, share and share alike, between all his children or their lawful heirs. And he appointed his son in law Henry Fanning, his son Benjamin A., and Daniel Allen, of New-York, his executors. Benjamin A. died in the life time of his father, and Allen declined acting as executor. Probate of the will was therefore granted to Fanning as the sole executor thereof. Fanning squandered such portions of the estate as came into his possession, and then became insolvent. In April, 1817, Fanning being desirous of raising money on the property of the testator, made a pretended sale of a lot in the city ofNew-York belonging to the estate, called the bake house lot, to the defendant Fay, and took from him two bands and mortgages for the purchase money, one for $2000, and the other for $1000. The whole object of this arrangement was to enable Fanning to raise money by selling these bonds and mortgages; and it was agreed between him and Fay that the latter should not be held personally liable for the payment of the bonds. When Fanning failed, in 1812 or 1813, he was indebted to- Pott & MTiinney in about the sum of $1250. In May, 1817, Fanning offered to assign to them the bonds and mortgages taken from Fay, in satisfaction of their debt, if they would discount one third of the amount due to them and advance him the balance of the nominal amount of the bonds and mortgages in money or their own notes. Their debts against Fanning being entirely hopeless, they consented to this arrangement, and took an assignment of the bonds and mortgages. In 1819, Pott & M’Kinney failed, and assigned the bonds and mortgages to Archibald Gracie & Sons, to secure a large debt due to them; Gracie & Sons filed a bill against Fay and obtained a decree of foreclosure against him. Under this decree the lot was sold and bid in by A. Gracie for the nominal sum of $1000. Gracie afi terwards gave the property , to his son Robert, and conveyed the same to him, with an understanding that if a certain debt due to him from his father shoqld not be paid •from other sources, this prpperty should be applied in payment of that debt. In 1-823, the bill in this cause was filed by Harriet Davoue, then an. infant. She afterwards intermarried with J. B. Pendleton, and the suit was continued by a bill of revivor.

      C. F. Grim, for the complainants.

      R. Sedgwick <j\ J. A. Dunlap, for the defendants.
   The Chancellor.

The other children of F. Davoue, and particularly Mrs. Beardsley, have an interest in this question.; and. if the objection had. not been expressly waived,by the' defendant’s counsél on the argument, the cause must have stood over until a ■ supplemental bill was filed, making them defendants. If the legal estate is in the heirs at law of Davoue, the court cannot direct a sale, which will give a good title to a purchaser, unless all the heirs and legatees are before the court.. And neither, until the heirs and legatees are before the Court, can .an account of the rents and profits . be taken and a distribution thereof ' made. But ás a decision of the questions of right in this case may enable the parties and legatees to settle the matters in difference between themselves, I shall proceed to dispose of the cause so far as it can be decided between ihe present parties.

' The power, to sell, given by the will to the executors, was special, and could only be exercised in the mode prescribed by the testator. It authorizes them, as the legatees become of age, to sell so much of the estate as. is necessary to pay their legacies' respectively ; and "■ it directs the sale to be at public auction. Neither of these requisites appear to have be.en complied with in this case. This was not a sale at public auction ; and the legatees, for whose benefit the executor pretended he'was selling, were not óf age. Independent of the question of fraud, this sale was wholly unauthorized and void, and nothing passed by the conveyance to Fay. But if the executor had the power to sell, this conveyance was a fraud upon the legatees, and may be avoided by them. It is abundantly'proved by the evidence in the cause, as well as by the answer of Fay, that the lot never was in fatit sold to him. . It was a mere device of Fanning to obtain the bonds and mort gages to enable him to commit a fraud upon some one. Although the bonds and mortgages were given in April, 1817, the deed was probably ante-dated, so as to appear to have been given in the month of September, 1816, to enable Fanning the more effectually to deceive the assignee of the securities, and to consummate the intended fraud. The only question which could have arisen on this part of the case, if the sale had been at auction and after the legatees became of age, would have been, whether the loss should fall upon the assignees of Fanning, or .upon the legatees. The mortgages in the hands of Fanning were void, and never could have been enforced against the interest of the legatees in the estate. They were assigned to Pott and M’Kinney, partly for cash and partly in payment of a debt due from Fanning, who was at the time notoriously insolvent. The assignment on its face showed that he was acting as executor. This was sufficient to put them on inquiry, and they ought not to have taken the assignment and paid the money, until they had ascertained that he was not committing a fraud upon the estate. It is not necessary to examine the numerous cases as to the question how far. the purchaser from a trustee is bound to see to the application of the purchase money, whére it has been paid in good faith to the trustee. That question is now put at rest by the revised statutes. But the question in this case is not reached by the statute; and is one as to which there never was any doubt. If a trustee applies the trust property to pay his own private debt to the purchaser, the latter is bound to ascertain that the trustee is not thereby misapplying the fund and violating his duty; especially when the trustee is insolvent. Wherever the purchaser has sufficient to put him on inquiry, he is in equity considered as having notice; and in such a case will not be deemed a bona fide purchaser. In this case the-assignment was from Fanning as executor; and part of the consideration was the payment of his private debt to the assignees, who at the time knew he was insolvent. They undoubtedly supposed he could give them a valid title to the mortgages, or they would not have advanced the balance in money. But there was sufficient on the face of the transaction to create a strong suspicion that some other person must suffer a loss, at least to the extent of the debt which was Paid by the assignment. If the assignees had made the proper inquiries they would have ascertained that the whole was a fraud upon the legatees. The assignment from Pott and M’Kinney to Gracia & Co. was of the same character, except that the latter took the assignment in payment of an antecedent debt. The foreclosure of the mortgages and the purchase of the property by one of these assignees, only divested Fay’s equity of redemption, if he ever had any, but did not alter the rights of the parties as against the legatees of Davoue. The gift.of the property to R. Gracie, or its assignment to him to secure a debt then due to him, could not make him a bona fide purchaser for a valuable consideration as against the rights of the legatees. Besides these bonds and mortgages were mere choses in action, the assignment of which could not give to the assignees any greater equity against the estate than Fanning himself had. On the whole I am satisfied that no estate passed to Fay which could be legally transferred to any one; and that the mortgages in the hands of Fanning were mere nulities, so far as the estate of Devoue was concerned. And that if any estate did pass to Fay by the deed, the defendants are not entitled to protection as bona fide purchasers, The conveyance to Fay, and the mortgages from him to Fanning, must therefore be declared void, and must be delivered up and cancelled. The complainants are entitled to have the property sold, and the legacies to Mrs. Pendleton and Mrs. Beardsley must be first paid out of the proceeds. They will also be entitled to an account of the rents and profits of the bake house lot from Robert Gracie, since the same came into his possession. But I cannot direct either a sale or an account until other parties are before the court. I can only at present decree the conveyance to Fay, and the mortgages given by him, to be void ; and direct a release to be given by R. Gracie, and that the possession of the premises be delivered up to the heii’s of Devoue. If the parties cannot compromise without further litigation, all further directions must be reserved, with liberty to the complainants to bring the other parties interested in the estate before the court by supplemental bill. So far as relates to the costs which have already accrued, the complainants are not entitled to any against the defendants, except as to Fay. He having permitted himself to be used by Fanning for an improper purpose, must pay the costs to which the complainants have been subjected in consequence thereof.