text:
    Grosvenor and others vs. Allen and others.
    The revised statutes having provided that the interest of a person holding1 a contract for the purchase of lands shall not be Bound by the docketing of a judgment or decree, nor sold on execution, a judgment or decree against the holder of such a contract is not a lien upon the land in equity. The only remedy of the creditor to reach the interest of his debtor in a contract for the purchase of lands is by filing a bill in equity, after he has exhausted his remedy at law for the recovery of his debt by the return of an execution unsatisfied. And a bona fide purchaser of the interest of the judgment debtor in land hold under such a contract, previous ta the commencement of the suit in this court to reach such interest, even where he has notice of the judgment, will be entitled to hold the debtor’s interest in the land as against the judgment creditor.
    A bona fide assignment of the interest of a judgment debtor íñ a Contract for the purchase of lands, although such assignment is made for the payment or security of a pre-existing debt, is valid as against the judgment creditor, where the assignment is made before the judgment creditor has obtained a lien upon the debtor’s interest in the land by the commencement of a suit in equity, after the return of an execution unsatisfied.
    March 16.
    This was an appeal from a decisión of the vice chan cell oí of the eighth circuity dissolving an injunction. B. Rathbpn, at the time of his failure in 1836, had contracted to purchase certain leasehold premises, to be paid for in the erection of buildings upon the property of the vendor3 and to be conveyed in part payment when such buildings were completed. The buildings had been partially erected by Rathbun at the time of his failure; and he had also made improvements upon the leasehold premises which he had been permitted to take possession of in anticipation of the completion of his contract. All Rathbun’s interest in the leasehold premises, under this executory contract, was conveyed to his assignees by, his general assignment fot the benefit of his creditors, on the 3d of August, 1836. The assignees settled with Wilkinson for the breach óf the contract to erect the buildings and upon such compromise received from him a conveyance of the leasehold premises, which they afterwards sold to the defendant 0. Allen. The complainants, who were the assignees of a judgment, rendered against Rathbun a short time prior to the general assignment of his estate for the benefit of his creditors, claimed that such judgment was á prior equitable lien upon the interest of Rathbun in the leasehold premises, under his contract. And the bill in this cause was filed for the purpose of obtaining a conveyance of the legal estate in the premises ; and to restrain the defendant Allen from selling the same.

      Sí. IÍ. Smith 4- E. S. Wart in, for the appellants.
    JV!, K. Hall 4* S. Stevens, for the respondents.
   The Chancellor.

In the decision of this appeal Í lay but of view thé fact that the time for the completion of Rathbun’s contract to build had expired before his assignment for the benefit of his creditors in August, 1836 and it is doubtful whether a court of equity at that time" would have compelled a specific performance of the agreement to convey to him the leasehold premises. The interest which his assignees acquired in that contract under the assignment, and their supposed equitable claim to go on and finish the buildings so as to entitle them to the conveyance of the leasehold property under the contract, was unquestionably the foundation of their subsequent compromise with Wilkinson, by which they obtained the legal estate in. the premises. And their vendee having purchased with full notice of all the facts, cannot in equity set up the defence that Rathbun had no existing interest in the contract with Wilkinson at the time of his assignment, on the 3d of August, 1836, which could pass to the assignees under that assignment. The only question for consideration, therefore, is whether a judgment at law is an equitable lien upon the interest of the judgment debtor in lands, held under an executory agreement to purchase the same; whether such lands have or have not been fully paid for, so as to entitle the vendee to an immediate conveyance of the legal estate 1 And upon this question I think the vice chancellor has arrived at the correct conclusion, under the new provisions contained in the revised statutes on the subject.

Previous to the revised statutes the equitable interest of a judgment debtor in lands was, in equity, subject to the lien of the judgment, except as to bona fide purchasers without notice ; in analogy to the lien of the judgment at. law upon a legal estate in the lands. (Forth v. The Duke of Norfolk, 4 Mad. Rep. 504.) And by the statute 29th Charles 2d, ch. 3, § 10, and the statute of this state concerning uses, (1 R. L. of 1813, p. 74, § 4,) certain trust estates were also made liable to executions, at law. It was as to this last class of cases that the question arose, in England, whether a purchaser for valuable consideration of the legal estate, after notice of the judgment but before execution issued, was entitled to hold the estate discharged of the equitable lien of the judgment. (See Coote's Law of Mort. 71; 2 Powell on Mort. by Coventry, 607, and note B.; 1 Atk. on Conv. 517; 2 Sugden on Vend. 10th Land. ed. 385, § 7.) That question is put at rest in England, as to all future judgments, by the recent statute, (1 & 2 Vict. ch. 110, § 11, 13,) which makes the docketing of the judgment a charge upon the equitable as well as upon the legal interest of the judgment debtor in lands ¿ except as to purchasers for valuable consideration without notice. Under the provisions of that statute, the complainants’ claim to priority, by virtue of their judgment, over the voluntary assignees of the judgment debtor, and as against the conveyance to the vendee who had notice of such judgment at the time of his purchase, would undoubtedly be sustained.

Our revised statutes, however, have made a very different provision for such a case as this; by declaring that “ the interest of a person holding a contract for the purchase of lands, shall not be bound by the docketing of any judgment or decree ; nor shall it be sold by execution upon any such judgment or decree.” (1 R. S. 736, ^ 4.) The statute having declared that such an interest in land shall not be bound by the docketing of the judgment, this court cannot so far repeal the statute as to make the judgment a lien upon the land in equity ; and thus to defeat an assignment for the benefit of creditors, made before the judgment creditor has obtained an equitable lien upon the interest of his debtor in the premises, by the commencement of his suit in this court to reach that interest, in the manner directed by the statute. By referring to the revisers’ notes it will also be seen that the legislature rejected a provision, recommended by the revisers, making a judgment or decree a lien upon such an interest in land, and authorizing that interest to be sold on execution ; and they substituted this section, authorizing the interest of the debtor to be reached by a creditor’s bill, after the return of the execution upon the judgment or decree unsatisfied, I have no doubt, therefore, that the vice chancellor was right in supposing that the complainants had not obtained any equitable lien upon Rathbun’s interest in the premises in question at the time of his assignment for the benefit of his creditors, in August, 1836. If the asignees had notice of the existence of the judgment at that time, they also knew, if they understood the effect of this statutory provision, that the complainants had no lien either at law or in equity upon the asssigned property, which could entitle them to a preference over any other creditor of Rathbun.

The order appealed from must therefore be affirmed with, posts.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Bowman vs. Marshall & Jones.
    The one hundred and thirty fourth rule of the court of chancery, authorizing the complainant in a foreclosure suit to apply for a decree on any regular motion day, where the bill is taken as confessed, or whore no answer has been put in denying a material allegation in the bill, only applies to cases where the bill has been taken as confessed, or where the cause is in readiness for hearing upon bill and answer; but does not authorize the complainant to apply for a decree upon a motion day where a plea or demurrer to the bill has been filed in good faith.
    Where the defendant in a foreclosure suit puts in a frivolous plea or demurrer, the complainant may apply upon a motion day to overrule such plea or demurrer, and for a final decree in the cause as upon a bill taken as confossed. But to entitle the complainant to such a decree, he must give special notice to his adversary that he intends to move for an order to overrule the plea or demurrer as frivolous, and to take the hill as'confessed, and for a final decree thereon.
    March 16.
    This was an application by the complainant to overrule the demurrer of the defendant Marshall, as frivolous, or to set it aside for irregularity, and to take the bill as confess ed, and for a final decree in the cause. The bill was filed to foreclose a mortgage given to the complainant by Marshall. Jones, a subsequent incumbrancer, suffered the bill to be taken as confessed against him. But Marshall demurred to the bill for want of equity ; which demurrer was evidently frivolous and put in for the mere purpose of delay. It was also defective in point of form ; his solicitors having by mistake signed the demurrer as solicitors for Bowman, the mortgagee, instead of signing it as the solicitors of the defendant Marshall. On a former motion day the complainant’s solicitor had noticed the cause for hearing upon the demurrer, and for a final decree in the cause i supposing that he was authorized to do so under the provision contained in the 134th rule, relative to the hearing of mortgage causes, upon motion days, either in vacation or during term.
    The Chancellor, upon that application, decided that the 134th rule, as amended in June 1840, was not intended to give the complainant the right to apply for a final decree, in a foreclosure case, where a plea or demurrer to the bill had been put in in good faith. That the rule was only intended to cover that class of cases, specified in the second section of the act of May, 1840, to reduce the expense of foreclosing mortgages in the court of chancery, where the bill had been taken as confessed, or where the answer of the defendant so far admitted the allegations in the bill as to entitle the complainant to a decree of foreclosure upon bill and answer. That the peculiar language of the part of the rule which relates to this subject, was adopted for the purpose of including the case of an infant who had put in a general answer by his guardian ad litem. That where a plea or demurrer had been put in to a foreclosure bill, in good faith, the cause was not in readiness for a final decree upon the disallowance of such plea or demurrer ; as the defendant had the right to put in an answer to the bill, upon payment of costs. (See Rule 49.) And that where the complainant intended to insist that the plea or demurrer to a bill of foreclosure was frivolous, and to ask for an order to take the bill as confessed, and for a final decree in the cause, on that ground, he should apprise the defendant of such intention, by a special notice to that effect.
    The application to bring on the argument of the demurrer and for a final decree was therefore denied ; with liberty, however, to the complainant to apply, upon due notice to the defendant, to overrule the demurrer as frivolous, or to set it aside as irregular, and to take the bill as confessed, and for a final decree; if he should be advised to make such an application.

      J. Rhoades, for the complainant.

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

There is a technical defect in the signing of this demurrer ; and as the object of the defendants was evidently to delay the decree of foreclosure, the demurrer would have been set aside, on this ground, if the application had been made the first opportunity after the demurrer was served on the complainant’s solicitor; although he was not misled thereby. But the court will not listen to a mere technical objection of this kind unless it is made without delay. The only question for consideration, therefore, is whether it is proper to hear this application, to overrule the demurrer as frivolous, upon a special motion day ; or whether the complainant shall be subjected to the delay of setting it down at the term as a calendar cause.

As a general rule, the court will not decide upon the merits of a plea, or demurrer, upon a special motion to overrule the same as frivolous. For in ordinary cases it cannot be necessary for the court to interfere before the cause is reached in its regular order upon the calendar. For that class of causes is always reached at an early day in the term; and if the plea or demurrer is then found to be frivolous, the bill may be taken as confessed, and the proper decree immediately entered, unless it be a case in which an answer is necessary. The spirit of the act of May, 1840, relative to the foreclosure of mortgages in this court, however, requires that a frivolous plea or demurrer to a bill of foreclosure should be made an exception to this general rule. And in all such cases, where a defence of that kind is interposed, which is clearly frivolous and intended for delay merely, the complainant will be permitted to make an application, upon any special motion day, before the cause could have been reached and disposed of in its regular order on the calendar, for an order to overrule the plea or demurrer as frivolous, and for a final decree upon the bill taken as confessed.

The demurrer in this case must be overruled accordingly, and the bill must be taken as confessed for want of an answer ; and the usual decree for the sale of the premises must be entered.

As the amount due is stated in the bill, the interest may be computed up to this time and inserted in the decree, without the unnecessary expense of a reference to a mas-ten The decree will reserve the right to the complainant to apply for the payment of his judgment out of the surplus monies which may be produced by the sale; subject to the rights of incumbrancers who have liens upon the premises, subsequent to the mortgage and prior to the judgment of the complainant which is set out in the amended bill.


text:
    Collins, appellant, vs. Hoxie and others, respondents.
    Where the testator, by his will, directed that his residuary estate should be divided equally among the children of his sister and of his two brothers, when they should severally become of age; Held, that each child was en= titled to an equal share of the estate per capita, and not by representation x>f their respective parents. Held also, that the eldest daughter of one of the brothers, actually born before the marriage of her parents, although she had been recognized by her reputed father and was brought up by him in the same manner as his other children, was not entitled to a distributive share of the estate of the testator.
    Where there are legitimate children in existence at the time of making the will, so as to satisfy the words of the devise or bequest in their primary sense, an illegitimate child cannot take under a general devise or bequest to children, as a class, unless there is something else appearing in the will to show that the testator intended to include ethers besides legitimate children.
    In a residuary or other bequest, to children and grand children, or brothers and sisters, and nephews and nieces, as a class, all the legatees take equal, ly per capita ; unless there is something in the will itself indicating a different intention on the part of the testator.
    The respondents, in an appeal from the sentence or decree of a surrogate, upon the settlement of the account of an executor or administrator, directing the distribution of the estate, are not entitled to a modification of the decree as between themselves; nor to o modification as against the appellant, except as to erroneous items in the account as provided for by the 118th rule of the court of chancery.
    Where the appeal from the decree of the surrogate is not in relation to the allowance or rejection of particular items of the account, or if the respondent wishes the decree modified in any other respect than as to particular items of the account, he must bring a cross appeal.
    If an executor in suing for debts supposed to be due to the estate, brings a suit in good faith, under the advice of counsel, and in a manner which is apparently for the benefit of the estate, he will not be subjected to personal loss, although the result shows that a different mode of proceeding would have been more beneficial to the parties interested in the estate.

      April 6.
    This was an appeal by Hezekiah Collins, one of the residuary legatees of Luke Hoxie, deceased, from the sentence and decree of the surrogate of the county of Madison, for the final settlement of the accounts of the executors, and for the distribution of the estate of the decedent among his residuary legatees. The executors rendered their account, of receipts and disbursements, and of the estate of the decedent which had come to their hands. To which account the appellant, and four others of the residuary legatees, objected that the executors had not charged themselves with a quantity of grain, and a few hogs and cattle, which it was alleged belonged to the decedent at the time of his death. They also insisted that the executors ought to be charged with the amount of a note of P. Langworthy, of §670, which the executors had caused to be sued in the name of another person, to endeavor to evade the defence of usury thereto, but in which suit they finally failed; and that the executors ought not to be credited with the costs which had been paid in that suit. Witnesses were examined before the surrogate in relation to these matters, and the surrogate decided against the objections. The testator by his will, after devising a part of his estate to the appellant, his nephew, for life, with remainder in fee to his heirs, and giving certain pecuniary legacies to the amount of §1850, gave the residue of his property to be divided equally among the children of his sister Mary, his brother Solomon, and his brother John, when they should severally become of age. At the death of the testator there were eight children of his sister Mary, nine of his brother Solomon, and six of his brother John, including Rhoda, the wife of J. Delaney j making twenty-three in all. But in the course of the investigation before the surrogate, the appellant and some of his brothers and sisters introduced witnesses to prove that Rhoda was in fact born before the marriage of John Hoxie with her mother. They therefore insisted that she was not to be considered as one of the children of John Hoxie, so as to entitle her to a share of the estate as one of the residuary legatees. They also insisted that all the legitimate children of the brothers and sister of the testator were entitled to take per capita, and not by representation; and that the. appellant and each of his brothers and sisters were therefore entitled to one twenty-second part of the residuary estate. It appeared by the testimony that Rhoda had always, until her marriage, been called Rhoda Hoxie, had lived in the family of her reputed father, and been treated as one of his children ; and had been recognized as such by the testator and other branches of the family, and had occasionally received presents from him. The surrogate decided that the children of the brothers and sister of the decedent were all entitled to equal portions of the residuary estate, and that Rhoda was entitled to share in the same, as one of the children of John. The surrogate also ascertained and settled how much each legatee had received from the executors ¡ some of them having received more and some of them less than their distributive shares ; and he decreed payment by the executors to those who had received less than their shares, including the interest thereon. According to the decree, the appellant Hezekiah Collins had received $119,27 more than the amount of his distributive share % which sum, with the interest thereon, left a balance against him of $155,57.
    The appellant, in his petition of appeal, objected that the executors had not been charged with a cow and eight hogs, not included in the inventory of the estate; and that they had been credited with the costs in the suit brought against Langworthy upon the usurious note. He also insisted that if the amount of the residuary estate was correctly stated by the surrogate, the decree was erroneous in awarding any portion of such estate to Rhoda, the wife of J. Delaney, as one of the residuary legatees under the will; the result of which error was to give to the appellant and to each of the other residuary legatees $7,93 less than they were respectively entitled to by law,
    Solomon Hoxie, one of the executors, in his answer to the petition of appeal, insisted that the amount stated as due was erroneous, in not allowing him certain sums he had paid for taxes. He complained also of certain errors in the decree for distribution, as between him and his co-executor, in reference to over payments to the legatees. He, therefore, prayed that the decree might be modified and corrected so far as it was erroneous as against him, and that in all other things it might be affirmed.
    John Hoxie, the co-executor, by his answer insisted that the decree appealed from was right and according to equity and justice, unless the appellate court should think that by the will of the testator the residuary estate should be distributed among the residuary legatees by representation ; one third to the children of each brother and sister of the decedent.
    Three of the children of John Hoxie, and the husband of Rhoda Delaney, who was dead, by their answer insisted that the decree was according to equity and justice except that in the distribution ef the property the decree was erroneous in not giving to the children of each brother and sister one third of the residuary estate, by representation. They, therefore, asked that the decree appealed from might be modified in this respect, and that in all other respects it might be affirmed»
    The infant legatees put in an answer to the petition of1 appeal, by their guardian ad litem, submitting their rights to the court. And the other respondents having neglected to answer the petition of appeal, an order was duly entered that the appeal, as against them, be heard ex parte,

      A. Thompson, for the appellant.

      C. Sherwood, for Solomon Hoxie and the infant re» spopdents,

      E. Holmes% for John Hoxie and his children, and Delaney.
   The Chancellor.

The respondents in this case misapprehended the effect of the 118th rule of this court if they supposed the final decree of the surrogate could be modified in their favor, where it was not found to be erroneous as against the appellant, without bringing a cross appeal; except in relation to the items in the account. But in case there is no error in the account, the appellant cannot succeed on his appeal if the decree is more favorable to him than it ought to have been. Should it therefore be found, upon examination, that the surrogate was wrong in supposing that Rhoda Delaney was entitled to share in the distribution as one of the residuary legatees, yet if he was equally wrong in deciding that the other children of the sister and brothers of the testator were entitled to take per capita, the appeal must of course be dismissed. For in that case the appellant would only be entitled to one twenty-fourth part of the residuary estate, instead of one twenty-third part thereof, awarded to him by the decree appealed from. It may be necessary, for that reason, to examine both of those questions, if it should be found that the appellant is in a situation, in other respects, to render a decision of either important in disposing of his appeal.

The claim to charge the executors with the cow and hogs, which were left unappraised, I think was properly rejected by the surrogate. It is fairly inferrible from the evidence that the testator had been living upon the farm of his father, for a great number of years, under an agreement that certain stock received with the farm and specified in that agreement should be returned when he left the farm. Although none of the original stock was in existence at the death of the testator, he was still bound to return it in kind or value. And at the time of the appraisal some of the property was left unappraised, for the purpose of satisfying this demand in behalf of the father. The admission of one of the executors, to the witness Rogers, that the fat cow and hogs belonged to the testator, does not prove that they were not left out of the inventory to satisfy that claim. Davis, one of the appraisers, states that the agreement was produced at the time of the. appraisal, and that the hogs and some other property were left out of the inventory to satisfy that claim •, but that no more property was left out than was sufficient to fulfil the agreement. It perhaps would have been more correct, where the substituted stock had not been agreed upon by the testator and his father in the lifetime of the former, to have inventoried the whole stock, and then for the executors to have turned out enough of the appraised property to satisfy the claim. But the result would have been the same to the legatees.

I do not understand by the petition of appeal that the appellant claims that the executors should be charged with the amount of the usurious note of Langworthy ; although such a claim was made before the surrogate. The only objection to the account in this respect, in the petition of appeal, as I understand it, is that the surrogate improperly charged the estate with the costs of the suit upon that note. Not having claimed the amount of the note in the petition of appeal, it was not competent for the appellant’s counsel, upon the hearing of the appeal, to insist that the decree was erroneous in that respect, under the provisions of the 118th rule of this court. But if that claim was properly made here, I am satisfied the executors ought not to be charged with the note or any part thereof. The testimony shows that the note was usurious and void. Lang-worthy may have proposed to secure the amount actually due if they could agree what it was. But as the executors had no means of knowing whether the whole was or was not due, for Langworthy stated he did not know that he could prove the usury, they were not in a situation to compromise the debt, even if Langworthy had proposed to secure any specific amount. Their only safe course, therefore, was-to put the note in suit, to recover the amount thereof if possible.

They also acted in good faith, and for the apparent interest of the estate, in bringing the suit in the name of a third person, under the advice of counsel, for the purpose, if possible, of avoiding the forfeiture of the debt in case the usury was proved. And for that reason I think the surrogate was right in allowing them the whole costs of the litigation j although they might perhaps have been excused from paying the defendant’s costs if the suit had been brought in their own names, as executors. Where an executor in such a case acts in good faith, under the advice of counsel and apparently for the interest of the estate he represents, he ought not to be subjected to a personal loss because the result of his exertions was not quite as beneficial to the estate as a different course of proceeding might have been.

The item of taxes which the respondent Samuel Hoxie insists should have been allowed him, in reduction of the balance due, is not supported by any thing contained in the surrogate’s return. And not having himself appealed, the correctness of the decree, as between him and his co-executor, or as between him and any other of the respondents, is not a proper subject of review here. In relation to some of the matters stated in his answer to the petition of appeal, it may be proper to say, it is stated in the surrogate’s return that it appeared, from the admissions of the executors that of the assets which were remaining in their hands unexpended, John Hoxie had $351,35, and Solomon Hoxie had $1137,66. And these are the sums which they are respectively directed to pay in satisfaction of the debts and legacies remaining unpaid. I presume this includes interest on the fund for the time they were chargeable with interest, and without making them any allowance for over payments; as the surrogate had a right to suppose the executors had taken the proper securities to enable them to recover back the excess, if any of the legatees had received more than their distributive shares.

The remaining question is as to the share of the appellant in the residuary estate as ascertained by the surrogate. And if the appellant is right in the claim made in his petition of appeal, that he was entitled to one twenty-second part thereof, then his distributive share was nearly $8 more than it was declared to be by the decree of the surrogate. And instead of having been overpaid $119,27 and interest thereon, the amount which he received from the executors more than his due, was but $111,34, exclusive of interest. As there was nothing due to him upon the accounting before the surrogate, he having already received from the executors more than he was entitled to in any event, I have very great doubts whether he had any right to appeal from the decree which does not direct him to pay back any thing. But as the decree declaring his rights as one of the residuary legatees under the will may, in a suit against him to recover back the excess he has received beyond his distributive share, be considered as conclusively settling what the amount of such distributive share was, I shall proceed to examine the questions presented by this part of the appeal. And if it turns out that he was entitled to a twenty-second part of the residuary estate, the decree must be modified so as to declare his rights in conformity with the decision in this respect. But even in that case it will not be necessary to alter the decree as to any other of the residuary legatees; who have not thought proper to question the correctness of the surrogate’s decision by joining in the appeal.

The fact is undisputed that Rhoda Hoxie, who was one of the reputed children of the testator’s brother John, was not bom in lawful wedlock. And the law appears to be settled that where there are legitimate children in existence at the time of making the will, so as to satisfy the words of the devise or bequest in their primary sense, an illegitimate child cannot take under a general devise or bequest to children, as a class, unless there is something appearing upon the face of the will to show that the testator intended to include others besides legitimate children. (Cartwright v. Vawdry, 5 Ves. Rep. 530. Harris v. Lloyd, Turn. & Russ. Rep. 310. Swaine v. Kinnerly, 1 Ves. & Bea. 469.) Here the children of John Hoxie are not named in the will; nor is there any thing on the face of the will to show the testator did not use the word children in its primary or legal sense. The testimony dehors the will renders it probable that if he had thought of it he would have used words sufficient to include Rhoda as one of the ¡residuary legatees. He has not done so, however; and it is not in the power of the court to correct the mistake, or to make a new will for him.

There may perhaps he some doubt whether the testator hj the words a he divided equally among the children of my sister Mary, my brother Solomon, and my brother John” intended the children of each should take an equal share of the residuary property, or that each of the children of the three should share equally among themselves. The settled rule of construction in such cases, however, seems to be that all the legatees take per capita unless there is something in the will itself indicating a different intention on the part of the testator. Thus in Blacklee v. Webb, (2 Peer Wms. Rep. 383,) where the testator, having had five children, one of whom had died leaving children, devised his residuary estate to three of his surviving children, and to the children of the other who was living, and of the one who was dead, Lord Chancellor King decided that the grand children of the testator were entitled to take equally with the three children per capita ; especially as the parent of some of the grand children was living. (See also Northey v. Strange, 1 P. Wms. 343; Butler v. Stratton, 3 Bro. C. C. 367; Wicker v. Mitford, Harg. Law Tracts, 513.) I conclude therefore that the appellant was entitled to $181,84 as his distributive share of the estate.

The decree of the surrogate must be modified, by declaring the appellant’s rights accordingly; and deducting the $7,93, and also $2,42 for the rateable proportion of the interest, from the amount which by the decree he is stated to have received beyond his distributive share; leaving the amount of excess $145,22 on the 26th of October, 1836. The decree may be so far modified, although the administrator of Rhoda Delaney is not before the court on this appeal. But I cannot alter the decree which the payment of a distributive share to her, so as to divide it among the other residuary legatees who have not appealed, in the situation in which the case now stands. Although the husband is entitled to administer upon his wife’s estate, he must take out letters of administration thereon to enable him to represent her rights in court.

Neither party is to have costs as against the other upon this appeal.


text:
    Leonard vs. Morris, and others.
    Where the mortgagee assigns his bond and mortgage and guarantees the collection of the debt, the assignee may make him a party to the bill of foreclosure; for the purpose of obtaining a decree over against him.for the deficiency, in case the amount of such deficiency should not be collected from the mortgagor who is primarily liable therefor.
    If the mortgagor, or other party who is personally liable for the deficiency in a foreclosure case, is dead, his personal representatives may be made parties to the suit; to enable the complainant to obtain a decree that the deficiency be paid out of the estate in. their hands, in a due Course of, administration. But no decree can be made against such representatives, which, will entitle the complainant to an execution against them for such deficiency, until an account of the estate of the decedent has been taken; unless they admit assets in their hands sufficient to pay such deficiency and; all other debts of the decedent of an equal and of a higher class.
    Where the complainant in a foreclosure suit unnecessarily makes the personal representatives of a deceased mortgagor or guarantor parties to his bill, and thereby subjects the estate to the useless expense of taking an account of its administration here, the court in its discretion may refuse, to-allow him the extra costs of that part of his proceedings.
    The complainant in a foreclosure suit cannot make the heirs or devisees of a deceased mortgagor, or guarantor, who have no interest in the mortgaged premises, parties to his bill, for the purpose of obtaining a decree over for the deficiency, against the real estate of the decedent which has come to them by descent or devise.
    No suit can be brought against heirs or devisees, to charge them with the debts of the testator or intestate, until the expiration of three years from the time of granting, letters testamentary or of administration upon his estate. And in a foreclosure bill it is impossible to comply with the. pro-. visions of the revised statutes relative to suits against heirs or devisees, so as to obtain a decree against them, or the estate of the decedent'in their hands, for the deficiency.
    April 6.
    The bill in this cause was filed to, foreclose a; mortgage, executed by Morris and wife to J. Sutphen, and afterwards assigned by Sutphen to the. complainant, with, a covenant on the part of the assignor: to. guaranty its.. collection. Sutphen having died before , the filing of the. bill,, the complainant made his personal representatives and his devisees parties to the suit; for the purpose of obtaining a decree over against them, upon the covenant of the testator, in case it should happen that the whole amount of the bond and mortgage and costs of suit could not be- obtained upon a sale of the mortgaged premises, or from the property of the mortgagor. The bill was taken as confessed against all the defendants, except one of the devisees of Sutphen ; who was an infant and put in a general answer by his guardian ad litem. The guardian ad litem afterwards consented to a decree against the infant, upon the supposition that the bill was properly filed against the devisees and next of kin of Sutphen, as well as against his personal representatives.

      J. Rhoades, for the complainant.

      L 0. Barker, guardian ad litem for the infant.
   The Chancellor.

The 154th section of the article of the revised statutes relative to the foreclosure of mortgages in this court, (2 R. S. 191,) authorizes the complainant, when the mortgage debt is secured by the obligation, or other evidence of debt, of any other person besides the mortgagor, to make such person a party to the bill for the purpose of obtaining a decree against such person for the deficiency, if there should be any, after applying the proceeds of the sale of the mortgaged premises towards the satisfaction of the debt and costs. Under this statutory provision, the court has permitted an assignor, who has guarantied the collection of the mortgage by the assignee, to be made a party defendant; and has allowed the complainant to take a decree over against him for the deficiency, where such deficiency could not be recovered upon execution against the property of the mortgagor, who was primarily liable for the payment of such deficiency. And where the person who is thus secondarily liable for such deficiency is dead, I can at present see no legal objection to making his personal yepersentatives parties to the suit for the purpose of obtaining a decree against them for the payment of such deficiency out of the estate of the decedent in their hands j to be paid in a due course of administration. In most cases, however, it is a useless expense to make the personal representatives, even of the mortgagor, parties to the suit to foreclose the mortgage. For no decree can be made for the payment of the deficiency out of the estate of the decedent, so as to entitle the complainant to an execution thereof in this court, until a full account of the administration of the estate has been taken ; except in those eases where the executors and administrators admit assets sufficient to pay the complainant’s debt, and all other debts of an equal and of a higher class which were due by the decedent. And where the complainant, in a mortgage case, unnecessarily brings the personal representatives of a deceased mortgagor, or guarantor, into this. court, and subjects the estate of the decedent to the extra expense of taking an account of the administration here, instead of waiting until the deficiency is ascertained and then calling such representatives to account before the surrogate, if necessary, it may be a proper case for the court to refuse to the complainant his extra costs of taking the account of the administration of the estate in this court, subsequent to the decree of foreclosure.

Admitting that it may be proper to make the personal representatives of a deceased mortgagor or guarantor parties to a bill of foreclosure, where it is probable there may be a deficiency, there is no case in which it is allowable to make heirs or devisees who have no interest in the mortgaged premises parties to a bill of foreclosure; with a view to reach the estate descended or devised to them, to satisfy an anticipated deficiency upon the sale of the mortgaged premises. To authorize the filing of a bill against heirs or devisees, to obtain satisfaction of a debt which is not a specific lien upon the estate descended or devised to them, the complainant must show by his bill that the personal estate of the decedent was not sufficient to pay the debt, or that the complainant has actually exhausted his remedy against the personal estate and the personal representatives and next of kin, &c. (2 R. S. 452, § 33. Idem, 455, § 56.) And it is impossible to do this as to the deficiency in a mortgage case, where at the time of filing the bill to foreclose the mortgage it cannot be known that there will be any deficiency whatever. In proceedings against heirs or devisees the statute also requires the complainant to state in his bill, with convenient certainty, the real estate descended or devised, (2 R. S. 454, § 44. Idem, 456, 60.) Again; the revised statutes have prohibited the bringing of any suit against heirs or devisees of any real estate, in order to charge them with a debt of the testator or intestate, within three years from the time of granting letters testamentary or of administration upon his estate. (2 R. S. 109, § 53. Butts v. Genung, 5 Paige’s Rep. 256.) And it appears upon the face of this bill that it was filed within three years after the granting of letters of administration upon the estate of Sutphen ; as those letters were not granted until January, 1838, and this bill appears to have been filed in November, 1840. The guardian ad litem of the infant defendant, therefore, instead of putting in a general answer and consenting to a decree against such infant, should have raised the objection, either in his answer or by demurrer, that the bill was improperly filed against the heirs and devisees.

The bill must be dismissed as to the heirs and devisees of Sutphen; but without prejudice to the complainant’s right to proceed against them by a new suit to charge them with the payment of any deficiency which may exist after the sale of the mortgaged premises, and which cannot be collected from the estate of the mortgagor or from the personal estate of Sutphen, after due proceedings had before the surrogate, &c. according to the provisions of the revised statutes. The decree, as to the personal representatives of Sutphen, will direct them to pay any deficiency which may arise, and which cannot be collected from the property of the mortgagor, out of the personal estate which has come to their hands, in a due course of administration ; with liberty to the complainant to apply for further directions as against such personal representatives, or to cite them to account before the surrogate as he shall be advised.


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    King and others vs. Strong and others.
    Where a testatrix, whose only son and heir was an idiot and had a large property in the hands of his committee, the income of which was more than sufficient for his support, bequeathed $1000 for the use and benefit of such son, to be appropriated at the discretion of her executors, and directed that so much of that legacy as her executors should not appropriate for his use during his life should at his decease go to the Foreign Mission School, a supposed charitable institution which in fact had no existence ; and the testatrix, after making a specific devise of a part of her real estate and giving specific and pecuniary legacies to a large amount, directed her executors to sell the real property not specifically devised, and bequeathed the proceeds and all her residuary estate, to the Home Missionary Society, in case it did not exceed $1000, and the residue beyond that sum to the children of her niece : Held, that the committee of the idiot were not entitled to have the $1000 legacy applied to his general support while the income of his estate was more than sufficient for that purpose ; and that the executors were only bound to apply it if it should become necessary in consequence of a loss of his property. Held also, that the limitation over to the supposed charitable institution having failed, the unexpended balance of this legacy would fall into the general residue of the personal estate of the testatrix, and would belong to her residuary legatees.
    A general residuary bequest of personal estate, or of chattels real carries to the residuary legatee, not. only such estate and such interests therein as the testator did not attempt to dispose of by his will, but also such as, by lapse or otherwise, have not in fact been effectually disposed of by him.
    Where the will of the testator is so ambiguous as to render it proper for the executor to take the direction of the court of chancery as to the construction of its provisions, the costs of the necessary parties to the litigation is a proper charge upon the estate. And the costs in such cases are generally charged upon the residuary estate of the testator; but the rule is not inflexible.
    An infant, or a lunatic, or an idiot, who is made a party to a suit to settle the construction of a will, ought not to be left to pay his own costs out of property not derived under the will, or from the testator.
    April 6.
    This was an appeal by the committee of J. H. Woodhull an idiot, from a decree of the vice chancellor of the first circuit. The bill was filed by the residuary legatees of H. Woodhull, the mother of the idiot, for an account and settlement of the estate of the decedent, and to obtain a judicial construction of her will as to two of the legacies therein mentioned. The testatrix died subsequent to the revised statutes seized of a considerable real estate and a large personal property, leaving the idiot her only heir at law. By the first clause of her will the testatrix made a bequest of one of the legacies in question in the following words : u I give and bequeath the sum of §1000 for the use and benefit of my unfortunate son J. H. Woodhull, to be appropriated at the discretion of my executors herein after named, whom I hereby direct to take the especial care and charge of my said son during his life; and so much of the said sum of §1000 as my said executors shall not appropriate for the use or benefit of my said son during his life, I give at his decease to the Foreign Mission School for the religious education of foreign young men.” And after making a specific devise of a part of her real estate and giving some specific legacies, and pecuniary legacies to the amount of ten or twelve thousand dollars to her collateral relatives, the testatrix directed her executors to sell the real and personal estate not specifically devised or bequeathed, and to collect in the debts, and out of the proceeds thereof to pay all her just debts and the several legacies in her will before bequeathed. The residue thereof, provided the same did not exceed $1000, she bequeathed to the Home Missionary Society, to be paid upon the receipt of the treasurer of the said society for the time being. And the remainder of her estate, after the payment of the $1000 to such missionary society, she gave to the children of her niece Eliza King, the complainants in this cause.
    The bill alleged that at the date of the will and at the death of the testatrix, and also at the time of filing such bill, Knowles Taylor was the treasurer of the Home Missionary Society mentioned in the will; which society was a mere voluntary association not incorporated, and the members of which were constantly changing. The complainants therefore insisted that the bequest to such society was void in law, and that the same belonged to the complainants as the residuary legatees of the testatrix. The bill also stated that there was no such school as the Foreign Mission School for the religious education of foreign young men to whom the residuary interest in the $1000 legacy mentioned in the first clause of the will was devised ; that the idiot son of the testatrix, to whom the primary interest in that legacy was bequeathed, at the time of making of the will and for a long time before and at the time of filing the bill, was possessed of a large real and personal estate, under the care of his committee appointed by this court | the income of which estate was much more than was necessary to support the idiot in the most liberal manner. The complainants, therefore, insisted that it was not the intention of the testatrix to give the $1000 mentioned in the first clause of the will to her son as a legacy for his ordinary support and maintenance, as was claimed by his committee ; but that she only intended to place the amount of such legacy in the hands of her executors to be employed by them if it should become necessary, or if they should think fit, in promoting the comfort of the idiot. And that if the executors, in the reasonable exercise of their discretionary power should not think proper to apply the amount of the legacy for the support of the idiot, the complainants were entitled to the same, or to so much thereof as should not be applied for his benefit, under the residuary devise of the will ; the bequest over to the Foreign Mission School being void. The treasurer of the Home Missionary Society and the idiot and his committee were made parties, with the executors, for the purpose of settling the questions in relation to these legacies and the residuary bequest.
    The cause was heard upon pleadings and proofs as to all the defendants. The vice chancellor decided and decreed that the legacy to the Home Missionary Society, which was a voluntary charitable association of which the testatrix had long been a life member and the objects of which society were well known to her, was a valid bequest; and that it must be paid to the treasurer for the use of the society. As to the other legacy he decided and decreed that it did not vest in the idiot son of the testatrix as an absolute legacy; that it was only to be appropriated in the discretion of her executors for his benefit during his life, not for his ordinary support, which his committee were bound to furnish and provide for him out of his own estate, but in the exercise of that special care and charge of him which the executors were bound to take by the will; that the legacy should not be paid to the committee, but should be retained by the executors during his life, subject to the discretionary power given to the executors; that it was the duty of the executors to invest the legacy so that it might be productive ; and if the legacy and its accumulations, or any part thereof, should, at the death of the idiot remain unexpended, it should be paid to the complainants as the residuary legatees. He also decreed that the committee of the idiot should pay their own costs out of his estate ; and that the complainants and the executors should be paid their costs out of the estate of the testatrix.
    The committee of the idiot appealed from so much of the decree as related to thet|1000 legacy mentioned in the first clause of the will, and from so much as required them to bear their own costs; the appellants claiming that the legacy should be applied to the general support of the idiot, and that if any thing remained at his death it would belong to him as the heir at law and next of kin of the testatrix. They also claimed that the costs of the committee should have been charged upon the residuary estate of the decedent.

      M. S. Bidwell, for the appellants.

      D. Lord, Jr. for the respondents.
   The Chancellor.

The legacies in this case were payable out of a mixed fund, consisting of personal property and of the proceeds of real estate. It is settled that a general residuary bequest of personal property, or of chattels real, carries to the residuary legatees not only such estate and such interests therein as the testator did not attempt to dispose of by other provisions of his will, but every part of his property which, by lapse or otherwise, is not effectually bequeathed and disposed of to- others. And it is equally well settled that the personal estate of the testator, unless it is exempted by the will, is the primary fund for the payment of legacies, although such legacies are charged also upon the real estate. Upon the argument of this appeal I understood it to be admitted that the personal estate of the testatrix, not specifically bequeathed, was sufficient to pay all the debts and legacies. In that case, if the unexpended'balance of the legacy mentioned in the first clause of the will is lapsed or void, because there is no such society in existence as that described by the testatrix as the object of her bounty, it necessarily follows that such balance goes to the residuary legatees, as an interest in the personal estate not effectually disposed of to others-Had the personal estate been deficient, so that a part of the failing bequest was the proceeds of real estate, the idiot as heir at law, would probably have been entitled to a part thereof, as an interest in real estate not effectually disposed of by the will. (See Eyre v. Marsden, 2 Keen’s Rep. 564. Gibbs v. Rumsey, 2 Ves. & Bea. 294. Van Kleeck v. The Reformed Dutch Church, 6 Paige’s Rep. 600. 20 Wend. 458, S. C. Gott v. Cook, 7 Paige’s Rep. 542.) The only real question upon this part of the will now is, whether the testatrix intended to charge the general support of her idiot son upon this legacy I

Considering the circumstances in which her son was placed at the time of making the will, it is difficult for the mind to arrive at any satisfactory conclusion as to what was the real object of the testatrix in making this bequest. Her son had then an estate worth upwards of forty thousand dollars, producing an annual income of treble what was necessary for his support. She could not therefore have contemplated the application of this legacy of $1000 as a fund for his general support for life, and have anticipated, as she did, that there would be a surplus left for the Foreign Mission School to which that surplus was bequeathed. And I think there can be no doubt that she intended this bequest of the surplus to be effectual; although she did not define the object of her intended bounty in such a manner as to enable the court to carry her benevolent and pious intentions into effect, as she has done in relation to the other benevolent object mentioned in her will. She probably intended this bequest for the benefit of some of the foreign mission schools under the care of our American missionaries in heathen lands ; and had gotten the impression that one of those schools had been established for the particular object specified in the will. I am therefore of the opinion that the aid to this supposed mission school was the principal object of giving this legacy. And that the vice chancellor is right in supposing that a mother’s feelings, which would not allow her entirely to overlook her unfortunate and only child in her will although she knew he had already more than sufficient to supply all his wants, induced her to connect this nominal bequest of an interest in the legacy with the ultimate gift over of what was not wanted for his use to the charitable object of her intended bounty. The case is somewhat different from that of Ashley, (1 Russ.& Myl. Rep. 371.) That was a case of lunacy, in which there was a possibility of recovery ; so that the application of the bequest for the support of one daughter would, in the event of such recovery, be most beneficial for her. But in the case of an idiot, where there is no possibility of his being benefitted by the increase of his property beyond what is sufficient to ensure him an ample support for life, the principle upon which Sir John Leach acted in the case of Foljambe v. Willoughby, (2 Sim & Stu. Rep. 165,) does not apply. It is evident, in the present case, that the testatrix could not have intended to give this legacy for general support, merely to increase the estate of her unfortunate child for the benefit of his heirs and next of kin, who were strangers to her blood. For she had entirely passed them over in the distribution of her ample estate ; which she had given to even remote collateral relatives of her own, because he did not need it and could not enjoy it. This bequest is a beneficial legacy to the idiot to a certain extent; as he is entitled to a support, out of the fund if by the loss of his other property by any unforseen occurence such an application of the capital of the legacy should at any future time become necessary. And so far the power to the executors to apply the legacy, or a portion of it, for his use and benefit, is a trust power, which is imperative and may be enforced by this court.

I think, however, the vice chancellor erred in refusing the committee of the lunatic the costs to which his estate had been subjected by this suit. It was the misfortune of the complainants, and not the fault of the idiot or his committee, that the testatrix had made her will in such a form that the executors could not safely proceed and settle the estate without taking the opinion of the court. The idiot and his committee not being authorized to relinquish his right to this legacy, if he had any, they were compelled to put in their answer, and submit the rights of the lunatic, under the will, to the decision of the court. And as they were necessary parties, and did not come into this court as volunteers, it seems to be a case falling within the general rule, that where the will of the testator is so ambiguously expressed as to render it proper for the executor to take the direction of the court, the necessary costs of the litigation to settle the construction of the will should be paid out of the fund. (Rogers v. Ross, 4 John. Ch. Rep. 608.) In such cases the court generally charges the costs of all necessary parties upon the residuary estate. It seems, however, that the rule is not inflexible ; as the court sometimes apportions the costs among the owners of the different interests in litigation, according to equity. (See Eyre v. Marsden, 4 Myl. & Craig’s Rep. 231, and cases there referred to; Mitchell v. Blain, 5 Paige’s Rep. 588.) But I have not been able to find any case in which the costs of an infant, or of a lunatic, or an idiot, who had been made a party defendant in such a suit, have been left to be borne by Ms own estate, not derived under the will, nor from the testator.

It was not necessary to charge the costs upon that part of the residuary fund which the testatrix unquestionably intended should go to the complainants. The fund in question between the complainants and the committee was one which, in all human probability, will never be wanted for the use of the idiot, and must eventually fall into the general residue because it cannot go to the charity which the testatrix had in her contemplation. That fund seems therefore to be the most appropriate to bear the costs of the committee of the idiot. And if the question was properly before me on this appeal, I might also direct the costs of the complainants to be paid out of the same fund.

That part of the decree which directs the estate of the idiot to bear the costs of his committee in this suit must be reversed. And the decree must direct the taxable costs of the committee, in the court below, to be paid out of the interest or income of the $1000 legacy mentioned in the first clause of the will; and the residue of the decree appealed from must be affirmed.

Each party having succeeded in part, in this court, it seems to be a proper case to leave the respective parties to bear their own costs upon the appeal. The proceedings are to be remitted to the vice chancellor.


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    Shiell vs. M’Nitt.
    Where the vendor contracted to sell his farm for $5000, and the vendee agreed to pay onc-fiflh of that sum and $350 for back rent on a specified day, "and to give a bond and mortgage at the same time for the residue of the purchase money, when he was to receive a deed of the premises; and simultaneously with the making of the contract the purchaser gave to the vendor a bond and warrant of attorney to confess judgment for the $1350, on which a judgment was immediately entered ; and the vendee afterwards paid $250 but neglected to pay the residue on the specified day, whereupon the vendor sold the premises for something less than the amount which the first purchaser was to have given; Held, that $1000 specified in the contract, and secured by the bond and warrant of attorney, was in the nature of a penalty merely; and that the vendor was not entitled to collect the whole amount secured by the bond and warrant, as stipulated damages.
    An agreement for stipulated damages, for the breach of a contract, ncccssari- ' ly implies that such damages are to be received in satisfaction! of, and as a full compensation for, the breach of the agreement to which such stipulation applies.
    April 6.
    This was an appeal from a decision of the vice chancellor of the fourth circuit, denying the defendant’s application to dissolve an injunction. The defendant had contracted with the complainant to sell him a farm on the first of April, 1839, for the sum of $5000 ; under which agreement the complainant went into possession. In December, 1839, that agreement was rescinded and another contract was entered into between the parties, under their respective hands and seals, to the following effect: The defendant M’Nitt agreed to sell the same farm to the complainant Shiell for the sum of $5000 ; the latter paying in addition thereto, the sum of $350 for the rent of the previous year. And M’Nitt was to give to the purchaser, on the first of April, 1840, a good and sufficient warrantee deed, conveying the premises in fee simple, upon receiving $1350 and a bond and mortgage upon the premises for the other $4000. The agreement concluded with the following clause : “ And the parties, in case of failure, bind themselves each unto the other, in the sum of $1000, which they hereby consent to fix and liquidate as the amount of damages to be paid by the failing party for his non-performance.” Simultaneously with this agreement Shiell, the purchaser, gave to M’Nitt a bond in the penalty of $2700, conditioned to pay $1350 on the 1st of April, 1840, and a warrant of attorney to confess judgment thereon ; upon which bond and warrant a judgment was entered in the supreme court. The bill alleged that this bond and warrant were given to secure the payment of the first instalment of $1000 and the $350 for the back rent. But M’Nitt in his answer stated that the judgment was not only given to secure the first payment and the rent, but also to secure the payment of the $1000 specified in the agreement as liquidated damages for the non-performance thereof. The complainant paid to M’Nitt, on or before the first of April, $250, towards the back rent, and took a receipt therefor. But being unable to pay the residue of the $1350 in the manner contemplated by the agreement, he gave up the possession of the farm ; and the defendant sold the same on the 14th of April, to another man, at a loss of $300 and the interest on the $5000 from the first of that month. M’Nitt thereupon caused an execution to be issued upon his judgment, against the property of Shiell, with a direction to the sheriff to levy $1127,71, and interest thereon from the 2d of April, 1840. And the complainant then filed his bill, and obtained the injunction to restrain the defendant from proceeding upon such execution.

      Cornelius L. Allen, for the appellant.

      J. Crary 8f M. Fairchild, for the respondent.
   The Chancellor.

I do not concur in the opinion expressed by the vice chancellor in this case, that the part of the answer which sets out the whole of the agreement between the parties is not responsive to the bill, so as to entitle the defendant to use that part of his answer upon the application to dissolve the injunction.

It is not necessary to say what would have been the construction of the last clause of the written agreement between the parties, as stated in the answer, if that had constituted the whole agreement between them. Considering it as a simple agreement on the part of Shiell to receive a conveyance of the premises on the first of April, and to pay therefor $1350, and give a bond and mortgage for $4000, or to pay $1000 as stipulated damages in case of his entire failure to perform any part of his agreement, it probably was a case in which the parties might stipulate as to the amount which either, who should recede from the agreement, should pay to the other in full satisfaction for all claims against him for the non-performance of the contract. (Rielly v. Jones, 8 Moore’s Rep. 244. Hasbrouck v. Tappen, 15 John. Rep. 290.) But an agreement for stipulated damages, for the breach of a contract, necessarily implies that such damages are to be received in satisfaction of, and as a complete compensation for the breach of that part of the agreement to which such stipulation is applicable. And if the $1000 specified in the last clause of this contract was intended by the parties as stipulated damages, to be paid by Shiell for the non-performance of his agreement to pay the $1350 and to accept a deed and execute his bond and mortgage for the residue of the purchase money on the 1st of April, it necessarily follows that M’Nitt had no right to demand payment of any part of the $1350, in addition to the payment of the stipulated sum which the parties themselves had fixed upon, as the damages to be paid in full satisfaction for sucíi' breach of the contract. The taking of a judgment to secure the payment of the $1350, or any part of it, either in connection with or in addition to the $1000 mentioned in the last clause of the written agreement was, therefore, wholly inconsistent with the supposition that the parties intended that the $1000 was to be the maximum, as well as the minimum, of damages which Shiell was to pay, in case he neglected to perform the agreement on his part, as a full compensation for such breach of his contract.

It is evident, from the answer of the defendant, as well as from the bill, that the written contract set out in the bill did not constitute the whole agreement between these parties ; but that the bond and warrant executed at the same time formed a part of that agreement. The written contract set out in the answer and this bond and warrant must, therefore, be construed together, for the purpose of ascertaining whether this $1000 should be considered as stipulated damages for the breach of the agreement, or as a mere penalty to cover the actual damage which either party might sustain by such breach. (See Jackson v. Dunsbagh, 1 John. Cas. 91; Van Horne v. Crain, 1 Paige’s Rep. 455.)

The complainant alleges in his bill that the judgment was given to secure the payment of the $1350, on the 1st of April, 1840; consisting of the $350 of back rent and the first payment of $1000 of the purchase money, which were to be paid on that day. But the defendant, in his answer, states that the bond and warrant were executed not only to secure the payment of that part of the purchase money and the $350 of back rent, but also to secure the payment of $1000 agreed upon as liquidated damages in case the complainant should fail to perform the agreement on his part. For the decision of the question now under consideration, it is of no consequence which party is right as to the object of giving the bond and warrant j as the statement of either party is inconsistent with the idea that the whole of the $1000, specified in the last clause of the written contract, was intended as the substituted compensation which M’Nitt was to receive in lieu of his right to demand payment of the $1350, and the execution of the bond and mortgage. No part of the $1350 was payable until the 1st of April, 1840. And if neither party intended that sum should ever be collectable, in case it was not paid on that day, the giving of a judgment to enable M’Nitt to enforce the payment thereof after that day was a nugatory act. For the issuing of an execution for any part of the $1350, instead of demanding the payment of the substituted sum of $1000 at which the damages were liquidated by the parties them selves, could not, in that case, be upheld either at law or in equity. On the other hand, if it was the intention of the parties to the agreement that M’Nitt should have the right, in any event, to proceed upon his judgment, after the first of April, to collect the $1350 or any part of it, then the $1000 specified in the last clause of the agreement must be considered as a mere penalty ; and as only intended to cover the actual damages which the vendor might sustain by the neglect of the purchaser to complete his contract at the time specified therein.

It is very evident that M’Nitt could not have had any definite idea of the meaning of the terms fixed and liquida ted damages, as used in this agreement, or he could not have supposed it possible that he could have the right, under his judgment, to collect the $1350, or any part of that sum, which was to be paid on the first of April, and also to collect the $1000 as the stipulated compensation which he was to receive if the whole of the $1350 was not paid at the day. For by the terms of the written contract the $1000 fixed as liquidated damages, applied as well to the non-payment of the $350 rent, as to the neglect to pay and secure the purchase money of the farm on the first of April. And if the amount thus fixed was not intended to be a full compensation for the non-payment of the rent, it must necessarily be considered as a mere penalty for the non-performance of any other part of the agreement by either of the parties thereto. (Kemble v. Farren, 6 Bing. Rep. 144. Davies v. Penton, 9 Dowl. & Ryl. Rep. 369. Boys v. Ancell, 7 Scott’s Rep. 364. 5 Bing. N. C. 390, S. C.)

In this stage of the suit, and upon the conflicting statements of the parties as to the object and intention of the giving of the bond and warrant, it is not necessary to express any opinion as to the extent of the defendants rights under his judgment; whether it is to be considered as a valid security for all of the damages which he has sustained for the breach of the contract by Shiell, or only as a security for the balance of the rent which remained unpaid, and the costs of entering the judgment. If, as the answer states, the defendant actually lost $300 by the depreciation in the value of the property, in addition to the improvements which the complainant had made thereon, he has an unquestionable right to recover that amount, and the interest on the $5000 from the first of April to the time of the sale of the farm to Barklay, in addition to the balance of rent which remains unpaid ; either under the execution upon his judgment, or by an action for a breach of the contract.

The decision of the vice chancellor in refusing to dis solve the injunction was correct j as the whole equity of the bill was not denied, as I understand the rights of the parties. The order appealed from is therefore affirmed with costs.