text:
    Coles and others, executors, &c. vs. Bowne.
    Where a block of land which had been subdivided into several distinct lots was put up and sold at auction, and was struck off to the purchaser at a specific sum, and the vendor upon a bill filed for a specific performance, insisted and proved that the premises were put up and sold by the lot, and the purchaser, in his answer, insisted that .the premises were put up as one entire parcel, and that he bid for the premises a price which was for the entire block ; and the evidence was such as to render it doubtful whether the defendant understood that the premises were put up and sold by the lot, the court decided that the complainant was not entitled to a specific performance of the contract; without reference to the provisions of the statute of frauds.
    Where the complainant in his bill, states an agreement, which, by the statute of frauds, would be invalid unless it was in writing, and subscribed by the vendor or his agent duly authorized, the legal presumption, from the statement of the agreement in the bill, is that it was in writing, unless the fact that it was a mere parol agreement appears from the bill itself. And if the defendant, by his answer, denies the making of the agreement, the complainant must produce legal evidence of such agreement; which can only be done by proving a written agreement duly executed according to the provisions of the statute.
    A party who files a bill to correct a mistake in a written agreement, in a case where the court has the power to make a correction therein, must not only state in his bill the agreement as it ought to have been reduced to writing but also the substance of the written agreement itself. And the party alleging a mistake in the written agreement holds the affirmative, and must satisfy the court, beyond all reasonable doubt, that such an agreement as he claims to have been made was in fact made between the parties, and that a mistake has occurred in reducing such agreement to writing.
    Under the provisions of the revised statutes an auctioneer’s memorandum, of the terms and conditions of the sale of lands by him, entered in his books, specifying the property sold, the price and terms of sale, and the names of the vendor and of the purchaser, is not sufficient to make a valid and binding contract of sale; although such a memorandum is sufficient as to a sale of goods.
    To make a valid contract for the sale of lands, the agreement must be in writing, and must be subscribed by the vendor or his agent; and the name of such vendor or of his agent must be subscribed below or at the end of the agreenent. "
    1844. January 16.
    Whether a party can come into a court of chancery for the specific peiformanee of an executory agreement for the sale of lands, which agreement is materially variant from the written contract between the parties, and where there has been no part performance of the agreement, nor any other equitable circumstances sufficient to take it out of the statute of frauds, as a mere parol contract between the parties ; Quaere ?

    This was an appeal by the defendant from a decree of the late assistant vice chancellor of the first circuit. The complainants, as the executors of J. Coles deceased, with power to sell his real estate, filed their bill in this cause for the specific performance of an alleged agreement, by the defendant, to purchase one hundred and one lots and //¡j- of a lot, in the city of Brooklyn, at the rate of $30 for each lot, estimating each lot to contain 2500 square feet of land. The bill alleged, in substance, that on the 2d of June, 1836, the complainants caused a part of the estate to be sold, at auction, which had been laid out upon a map as city lots in Brooklyn; that the lots, as laid out, consisted in part of gore lots, and that the terms upon which the property was put up from time to time were, that where the parcel contained any gores it was to be estimated according to the number of full lots the parcel contained, estimating each full lot as containing 25 feet by 100, or as containing 2500 square feet; that ten per cent of the pürchase money was to be paid on the day of sale, twenty per cent on the delivery of the deeds; and the residue of the' purchase money was to remain on bond and mortgage for three years if required, at six per cent interest, payable semi-annually. The bill further stated that among other parcels put up and sold, the premises in question, called in the pleadings and proofs block 13, containing many gores, and numbered on the map of sale from 1 to 133 inclusive, were put up and sold on those terms, at such price for each full lot of 2500 square feet as the purchaser might bid ; and that the defendant became the purchaser of the block at the price of $30 for each full lot, as before stated ; that he paid the auctioneer $3, a portion of the ten per cent to be paid on the day of sale, which was afterwards paid by the auctioneer to the complainants in completion of certain other purchases made by the defendant at the same sale; that the defendant afterwards admitted that there had been a mistake in the payment of the ten per cent on this block, and that he had paid it only for one lot, when he should have paid it on the map numbers of the lots, being 133 lots, but that it made no difference, as he meant to complete his purchase as soon as the quantity was satisfactorily ascertained, for the whole 133 lots ; and that he had made several offers of compromise subsequently, but had finally refused to complete his purchase.
    The defendant, in his answer, set out the will of the complainant’s testator, and questioned their right to sell and to give a good title, under the will. He admitted that certain other portions of the property, where there were gore lots, were sold upon the terms mentioned in the bill as to the mode of computing the number of lots therein ; but he denied that the premises in question were put up in that way. On the contrary, he alleged, that when the premises as to the purchase of which a specific performance was sought in this case, were put up, being a tract of land, as appeared by the testimony, covered by the waters of a mill pond, and which was the last tract sold, they were put up as one lot, being block thirteen, and not in any other manner ; and that after one or two bids had been made thereon by other persons, the premises were struck off to him as one lot, being block thirteen, for the price or sum of $30. He further stated in his answer that he paid ten per cent upon this and his other purchases ; and that at the time he paid the same he obtained from the auctioneers a statement in writing, a copy of which was annexed to his answer, by w'hich it appeared that each block and the number thereof as per map, and the number of lots bought by him in each block, with the price per lot, and the amount of the purchase money for the lots in each block, were carried out and stated in separate and distinct lines; and that the aggregate amount of "all his purchases was $14,925. And in that statement,block No. 13, the premises in question, was put down as one lot, and was carried out as purchased at $30 only. The defendant also set out in his answer the usual receipt of the auctioneers, signed by a person in their employ and for them, for the ten per cent, dated four days after the sale, setting out the various lots purchased by him, acknowledging the receipt of $1492,50, being ten per cent deposit, according to the conditions upon which his purchase of the Jots and blocks specified therein were sold to him at auction for $14,925, and for which a good and sufficient title was to be given by the executors of Jordan Coles deceased; and stating that such deposit would, under no circumstances, be paid over to either buyer or seller, without their mutual consent and the production of that receipt. The answer further Stated that such receipt was given up by him to one of the complainants, who gave to him another in lieu of it, acknowledging the receipt of the deposit, stating the terms and amount of the sales to him as in the auctioneers’ receipt, and the aggregate amount of such sales, and for which, a good and sufficient title was to be given by the executors of Jordan Coles deceased, and that such receipt was given in exchange for the auctioneers’ similar certificate ; which receipt of one of the complainants was signed by him as executor of J. Coles.
    The defendant also denied in his answer that he ever understood or admitted that block 13 had been purchased by him by the lot of one hundred feet by twenty-five; or that he ever conceded that the premises in question were purchased upon the terms stated in the bill; or that when the auctioneer’s receipt for the deposit was given up and exchanged, he admitted there had been a mistake, and that he should have paid ten per cent on the map number of lots. He further stated his belief that the block 13 was not worth the $30 which he bid for it,-as it was covered with water and would require to be filled up about seventeen feet, according to the present corporation regulation of the streets in that vicinity. The answer stated also that the lines of the premises in question were indispute, between the complainants and M. Bryen the owner of the adjoining land 3 in relation to which lines there was considerable conflicting testimony in the cause. Testimony was also taken as to the terms upon which this block was put up and sold ; and one of the witnesses who attended the sale swore that he understood the terms of the sale to be as stated by the defendant in his answer. The greater number of witnesses, however, supposed the block was put up by the lot of 25 feet by 100. But the auctioneer had no distinct recollection as to what occured at the sale, except from the entries in the books; which entries were not made by him, but by a clerk who was at the time of the examination absent in one of the western states. And it appeared by the clerk of the auctioneer who received the ten per cent deposit, and who gave the receipt, and the statement of the lots sold to Bowne and the prices, that the entry in the book had been altered by the clerk who was then absent, after such statement was given, four days subsequent to the sale, by inserting 133, as the number of lots contained in that block, between the number of the block and the $30, bid by the defendant. But .whether that alteration was made before or after the controversy arose between these parties, did not appear. The receipt given by the auctioneer’s clerk, and the substituted receipt given by one of the complainants, was the only written evidence which was signed by either of the parties or their agents, showing the terms or conditions upon which the sale was made. All the other lots and parcels purchased by Bowne were paid for, and were conveyed to him, according to the terms upon which they were struck off to him' at the sale.
    The assistant vice chancellor decreed a specific performance, by the defendant, according to the claim made by the bill, with costs 5 with liberty to the defendant, if he elected to do so within ten days, to have a reference to a master as-to the title of the complainants.

      S. F. Clarkson, for the appellant.
    As the agreement set forth in the bill is denied in the answer, the complainants were bound to prove such an agreement as was set forth in their bill, and that it was a valid agreement for the sale of lands; viz. an agreement in writing and subscribed by the vendor or his agent. (1 Hoff. R. 470. 3 Paige, 478.) There was no proof of such an agreement. The complainants could not, under their bill, prove there was a mistake in a written agreement, to the end that it might be reformed and then specifically performed. To reform a written agreement for the sale of lands, by parol evidence, is inconsistent with the statute of frauds. (2 R. S. 135.) The admission of such evidence would defeat the object of the statute. (9 Ves. 239. 15 Id. 521. 1 Sugd. on Vend. 136 to 141, Mass. ed. 12 Ves. 446. 3 Paige, 478, 1 Ves. jr. 326, 330. 6 Ves. 329. 7 Id. 212. 1 Molloy, 359, 353. 2 Atk. 71. 10 Ves. 511. 3 Bro. C. C. 311. 2 Atk. 236. Cowen & Hill’s Notes to 1 Phil. Ev. 539.) The bill is not framed with a view to the reforming and correction of an agreement. If this could be done under the bill, there is no evidence in the case which will warrant it. Where there is a misunderstanding as to the agreement between the parties, no decree for a specific performance should be made. (Graham v. Henderson, 5 Munf. 185. 1 Ves. jr. 211. 4 Price’s Ex. R. 135. Jer. Eq. J. 367. 2 Bro. C. C. 420.) There has been no part performance to take the case out of the statute of frauds. None is alleged in the bill.

      W. K. Thorne, for the respondents.
    The complainants do not seek to vary a written instrument. But they set up one agreement, the auctioneer’s book, and the defendant sets up another, the mere receipt of a person in the auctioneer’s employ. And the only question is, which is the true agreement. (5 John. 72.) The proof clearly establishes the allegations in the bill as to the sale. Even if the case was as insisted by the defendant, there is manifestly a mistake in the receipt produced by him ; and a mistake can always be explained, and" in this court corrected, and the agreement enforced as corrected. (2 Edw. 50. 1 Story’s Eq. Pl. 171, § 159. Idem, 164, § 152. Idem, 167, § 155, note 1, Idem, 168, § 156. Idem, 175, note 1. 1 Harr. 540.) Parol evidence is admissible to supply a deficiency, where a written agreement cannot be understood without such evidence. (1 Story’s Eq. Pl. 171, § 159. 3 Phil. Ev. Cowen & Hill’s Notes, 1485, 6, 1383, 4. 2 John. Ch. R.[ 585.)]
   The Chancellor.

From the testimony in this case I think it is very doubtful whether the premises in question were not set up in such a manner as to induce the defendant to suppose the block was to be sold together, as one entire parcel; and without reference to the number of building lots which might possibly be made out of it if the mill pond, which overflowed the land, should be drained off and the bed thereof be filled up to the contemplated grade of "the city. The answer of the defendant, which is responsive to the bill in this respect, is corroborated by the testimony of Day, the city surveyor. He was present when the premises in question were put up ; and he swears, that from what the auctioneer said at the time, he understood block 13 to be put up as one parcel, and to be sold altogether and not by the lot. The auctioneer himself has no distinct recollection on the subject, independent of the entries in the book which were not made by himself. And as it appears, from the testimony of Williams, that the entries in the books, as they now are, must have been made more than four days after the sale, no reliance whatever can be placed upon the books as evidence of a fact. Two or three witnesses who were at the sale, however, think they have a clear recollection that this block was put up and sold by the lot, as the others were. But to show how little reliance is to be placed on the recollection of any witness as to matters in which he had no immediate interest, nor any thing to impress' them upon his mind at the time, or until long afterwards, one of the complainants’ witnesses who is most positive as to the manner in which this particular block was put up, and that it was struck off to the defendant at $30 for each lot of 2500 square feet, only recollects to have heard Mr. Bowne’s name announced as the purchaser of one other parcel at that sale ; and he is not even certain as to that. Yet, it distinctly appears from the statement of the defendant’s purchases at the sale, that at least seven distinct parcels were at different times struck off to him, at prices varying from $50 to $300, and amounting in the aggregate to nearly $15,000, besides the block in controversy in this cause. Among the parcels thus purchased by him was one entire bio ck, consisting of 29 lots and fractional lots, according to the map numbers, which were thus put down at the time by the clerk. And the number of lots were stated upon the book at the time, although some of them, as appears by the map, were fractional lots, upon which a computation was afterwards to be made, to ascertain the number of full lots. The fact that the number of lots in block 10 was put down by the clerk at the time, and that the number in block 13 was not thus put down, shows that there must have been some difference in the language used by the auctioneer in putting up the two blocks. In the one case, he probably put up block 10, consisting of 29 lots and fractional lots, and the clerk took down the same accordingly; and in the other case put up block 13, without saying any thing as to the number of lots therein, or whether it was to be sold by the lot or as an entire parcel, and the clerk took it down accordingly. If so, the defendant and the witness Day may have supposed it was intended to be put up as an entire parcel, as they both swear it was, although the other witnesses understood it otherwise. I have no doubt, however, that it was the intention of the complainants and probably of the auctioneer to put it up by the lot, and that the complainants honestly believed it was so put up. For they had taken the trouble to have it laid out upon a map and lithographed, as consisting of 134 building lots and fractional lots. Although it appears to have been a mere mill pond and not worth the expense of filling up for city lots, and may not be for the next fifty years, it must be recollected that this sale took place in June, 1836, when thousands of our fellow citizens, who were esteemed discreet and prudent men, considered the most worthless quagmire or frog pond, if situated within two or three miles of any of our principal cities, as immensely valuable foj the purpose of building lots. And one of the witnesses thought of purchasing this pond at the nominal price of two or three thousand dollars, if he could get it in exchange for other property at the same rate as to price and value. But I do not understand any one of the witnesses to say that he believes the whole block is intrinsically worth, for building lots, what the defendant puts it at in his answer; a sum less than the $30 which he says he bid for the block as one entire parcel. I presume the defendant thought at the time he had made a great speculation. Or if he did not, I can well imagine there were others at that sale, and who had arrived at what is usually considered years of discretion, who actually expected to live until the site of this pond was covered with valuable buildings; and who perhaps anticipated that before this time the progress of improvement would have been such, that stately merchant ships would be riding at anchor in what was then known by the humble name of Gawannus creek. But the doubt upon the question as to whether both parties understood the agreement implied from the defendant’s bid, alike in this case, is so great, that I think the court ought not to decree a specific performance in favor of either, according to his or their respective understandings of the contract, even if a parol agreement for the sale of lands, not subscribed by the parties by whom the sale was to be made or by their agent lawfully authorized, was valid under the provisions of the revised statutes.

Although this would, be sufficient of itself, to make it my duty to reverse the decree appealed from, it may be proper to consider the question arising under those statutory provisions, in reference to the claim of the respondents for the specific performance of the contract as stated in their bill.

Where the complainant in his bill sets up an agreement which by the statute of frauds would be invalid unless it was in writing, and subscribed according to the provisions of the statute, the legal presumption is that it was in writing, unless the contrary is stated in the bill. And if the agreement, as stated in the bill, is denied by the answer of the defendant, the complainant must produce IegaL evidence of the existence of such an agreement upon the hearing; which can only be done by producing a written agreement, duly executed according to the provisions of the statute. (Cozine v. Graham, 2 Paige's Rep. 17. Ontario Bank v. Root, 3 Id. 478.) Where the agreement is of such a nature as to authorize this court to correct any mistake which has been made therein, if the written agreement does not in fact contain the true agreement between the parties, the complainant, when he wishes to introduce parol proof to correct it, should not merely state the agreement as it ought to have been reduced to writing, but he must also state the substance of the written agreement. And he must show wherein it differs from the one actually made; so that if the alleged mistake is denied in the answer, the testimony may be directed to the question whether a mistake has or has not occurred in reducing the agreement to writing. The party alleging the mistake, in such a case, holds the affirmative; and he must satisfy the court beyond all reasonable doubt that such an agreement as he claims to have been made was in fact made between the parties, and that either by fraud or accident a mistake has occurred in reducing the agreement to writing. Whether a party can come into this court for the specific performance of a mere executory agreement for the sale of lands, which in its terms is materially variant from the written agreement between the parties that has been executed according to the statute, and where there has been ' no part performance or other equitable circumstance sufficient to take the case out of the statute of frauds, as a mere parol contract between the parties, is a question which it will not be necessary for me to consider in this case.

The former statute of frauds provided that no action should be brought whereby to charge any person upon any contract or sale of lands,v&c. or of any interest in or concerning them, unless the agreement or some note or memorandum thereof should be in writing and signed by the party to be charged therewith, or by some person thereunto by him or her lawfully authorized. (1 R. L. of 1813, p. 78, § 11.) Under this statute, and under a similar provision in the statutes in England and in our sister states, it was held that the literal act of signing was not necessary, but that it was sufficient if the name of the party was written by him, or by his authority, in any part of the agreement or memorandum of the same. And it was a disputed question, both in England and in this country, whether an auctioneer was the agent of both parties, so as to make his written memorandum of the terms and conditions of the sale, and of the names of the parties thereto, entered in his book at the time of such sale, a sufficient signing of the agreement by the agent of both parties, within the intent and meaning of the statute. (Walker v. Constable, 1 Bos. & Pull. 306. Buckmaster v. Hanop, 7 Ves. 344. Coles v. Trecothick, 9 Id. 249 ; 13 Id. 472, S. C. Hamsfield v. Johnson, 1 Esp. Rep. 101. Emerson v. Heelis, 2 Taunt. 28. White v. Proctor, 4 Id. 209.) In the two last cases it was settled in England, contrary to what had formerly been understood to be the law there, that the auctioneer was the authorized agent of both parties in making a contract for the sale of real estate, as well as on a sale of goods; so as to make his entry of the agreement in his books, at the time of sale, binding upon both.

These decisions were afterwards acquiesced in by Sir William Grant, and by Lord Eldon in the case of Kemeys v. Proctor, (3 Ves. & Bea. 57, 1 Jac. & Walk. 350, S. C.) though contrary to their previous opinions. The same decision was made by Chancellor Kent, in McComb v. White, (4 John. Ch. Rep. 659.) And it has since been, held in England that the bidder at an auction sale is bound by the entry in the sale book by the auctioneer’s clerk, made in the presence of such bidder, upon his name being called out as the purchaser. (Bird v. Boulter, 1 Nev. & Man. Rep. 313.)

But under the provisions of our revised statutes, a mere memorandum in the auctioneer’s books, made by him, or his clerk under his direction, specifying the property sold, the price, the terms of the sale, and the names of the vendor and the purchaser, is not sufficient to make a valid and binding contract for the sale of land ; though it is expressly declared to be sufficient in relation to a sale of goods. (2 R. S. 136, § 4.) The eighth and ninth sections of the title of the revised statutes in relation to fraudulent conveyances relative to lands, declare that every contract for the sale of lands, or any interest in lands, shall be void unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the sale is to be made, or by the agent of such party lawfully authorized. And the court for the correction of errors, in the recent case of Davis v. Shields, (26 Wend. Rep. 341,) decided, that to constitute a subscription of the contract, within the meaning of the statute, the name of the party or, his agent must be signed below or at the end of the contract, or of the memorandum thereof. In the case under consideration, the only notes or memorandums of the terms of the sale which purported to be subscribed by any persons as the vendors of the property, were the receipt signed by Williams “ for Bleeker & Sons,” the auctioneers, and the substituted receipt of W. K. Thorn, as one of the executors of J. Coles. But neither of these receipts expresses either the terms or conditions, or the consideration of the sale of the particular block which is in controversy in this suit. Nor is there any thing upon the map, exhibit C. to which it refers, to designate the boundaries of block 13, or to show whether the block included the whole 134 lots and fractions of lots to the north of Coles’ street, or only the 110 lots which lie east of the nameless street which is drawn at right angles with Cooper street. Neither would correspond with the description of the premises which are stated in the complainant’s bill to have been sold to the defendant. The bill does not describe the land sold as block 13 ; which was the description by which it was put up for sale, as I understand from the testimony of the witnesses, and which was the description of the parcel as entered on the sale book. But the complainants, in their bill, say that the defendant became the bidder, and was declared to be the purchaser of the following premises : All those certain lots, pieces or parcels of land known and distinguished on a map of the property belonging to the estate of Jordan Coles, &c. by the numeral numbers from 1 to 133 inclusive thus leaving out fractional lot No. 134, which in the vice chancellor’s decree is considered as a part of block 13. The auctioneer’s clerk, therefore, when he afterwards amended the entry in the book, by making what he had originally carried out as the price of the whole block 13 applicable to each of the lots and fractional lots within the supposed bounds of that block, did not make his entry according to the contract of sale as proved by the complainant’s witnesses. And if the entry in the sale book corresponds in substance with exhibit B., which is the only extract from that book with which I have been furnished, it was defective in not stating that these 133 lots, which by the new entry were put down as sold to the defendant at $30 a lot, were not sold as'full lots ; but that those which contained less than 2500 square feet were only to be paid for in the proportions which their actual contents bore to a full lot. I am satisfied, therefore, that there was no valid contract in writing, for the sale of the premises described in this bill, either according to the provisions of the revised statutes, or even as a compliance with the former statute of frauds.

The decree appealed from must be reversed ; and the bill of the complainants must be dismissed with costs in the court below, but without costs to either party upon this appeal. The costs to be paid by them out of the fund arising from the sales made by them as executors, or other funds belonging to the estate of the testator, in their hands.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    West and others vs. The Mayor, &c. of the City of New-York.
    1844. January 16.
    Where a bill was filed to restrain the corporation of the city of New-York from prosecuting suits against the complainant for breaches of the ordinances of the corporation relative to the weighing of anthracite coal; Held, that the question of the validity of these ordinances did not properly belong to the court of chancery for decision, as the complainant had a perfect defence at law if the ordinances were invalid, or if they did not render the complainant liable for the penalty.
    The court of chancery will not grant an injunction to protect a party against a multiplicity of suits, until his right to such protection has been established by a successful defence at law in some of the suits.
    Bills of peace have been sustained by the court, to settle the rights of parties in a single suit, in cases where the questions to be determined were questions of fact, or mixed questions of law and fact. But no such bill can be sustained to restrain a defendant from suing at law, where the rights of the parties depend upon a question of law merely, and where the defendant in the suit at law must eventually succeed in his defence, without the aid of the court of chancery, if the law is in his favor.
    This was an application, by the defendants, for the dissolution of an injunction granted by the late injunction master of the first circuit, restraining the defendants from prosecuting suits against the complainants, or their agents, cartmen, or servants, for breaches of the corporation ordinances relative to the weighing of anthracite coal in the city of New-York.

      L. H. Sandford, for the complainants.

      P. A. Cowdrey, for the defendants.
   The Chancellor.

The question as to the validity of the corporation ordinances does not properly belong to this court for decision ; where the complainants, as in this case, have a perfect defence at law if the ordinances are invalid, or if they do not render the complainants, or those in their employ, liable for the penalty. And it would be an usurpation of jurisdiction by this court if it should draw to itself the settlement of such questions when their decision was not necessary in the discharge of the legitimate duties of the court. In the case of Oakley v. The Mayor, &c. of NewYork, decided in April, 1840, which was a bill for an injunction to restrain the prosecution of suits at law under the market ordinances, I decided that if the objections to the legality of those ordinances were well taken, the complainant had a perfect defence at law. And that this court would not grant an injunction to protect him against a multiplicity of suits, until his right to such protection had been established by a successful defence at law in some of the suits. (See Eldridge v. Hill, 2 John. Ch. Rep. 281.) In the present case the complainants’ bill does not show that they have established their right at law ; but on the contrary it is distinctly stated in the bill that in some of the suits which have been commenced the decision has been adverse to the complainants, and that the other suits have not yet been decided. It.is true they complain that in those cases the court decided the law against them, and did not submit the legality of the ordinances to the jury to be decided as a matter of fact; and that they intend to carry the question as to such legality before a higher tribunal for a decision. But neither of those circumstances can give jurisdiction to this court to interfere, before the right of the complainants is established by such higher tribunal. And if they are successful there,it is not probable that the interference of this court will be necessary.

The cases referred to by the counsel for the complainants on the argument, where bills of peace have been sustained, by the court of chancery, to settle the rights of parties in a single suit brought under the direction of the court, are cases as to rights of common, or of fishery, &c. where the questions to be determined are questions of fact, or are mixed questions of law and fact. But I am not aware of any case in which this court has sustained such a bill, to prevent the defendant from suing at law, where the rights of the parties depended upon a question of law merely; and where the defendant in the suit at law must eventually succeed, without the aid of this court, if the law was in his favor. The bill in the present case cannot therefore be sustained for any purpose. And the injunction must be dissolved, so far as it was not dissolved upon the argument, with costs to the defendants.


text:
    W. & J. James vs. Woodruff and others.
    1844. January 16.
    The right of a stockholder in a corporation to sell and transfer his stock, and to pass the legal title of such stock to the purchaser, ceases upon the dissolution of a corporation.
    Upon the dissolution of a joint stock corporation the interests of the several stockholders are reduced to mere equitable rights to their several distributive shares of the funds of the corporation, upon principles of justice and equity among all the stockholders. And in making distribution each stockholder is to he charged with the debts due from him to the corporation, so as to equalize the distributive shares of all the stockholders in the fund after payment of all debts due by them respectively to the corporation.
    Where a stockholder assigns his interest in the stock of a corporation after such corporation is dissolved, the assignee takes the interest of the assignor, in the effects of the corporation, subject to all claims against the latter in favor of the corporation.
    The provisions of the revised statutes against stock-jobbing do not apply to the sale of the distributive shares of stockholders in the corporate effects of a corporation after it has been dissolved; such shares not being stock, but mere choses in action which are not negotiable.
    Where the debtor of a corporation purchases from a stockholder his interest in the distributive share of the assets, after the corporation has been dissolved, such debtor is in the same situation as if he had owned that portion of the stock of the corporation at the time of its dissolution. And if he afterwards assigns his interest in the fund his assignee takes it subject to the payment of the debt of the assignor.
    This was an appeal by the defendants from a decree of the assistant vice chancellor of the first circuit. On the 15th of May, 1837, the legislature passed an act to repeal the charter of the Lockport Bank; which act took effect on the 4th of June in that year. The repealing act made the directors then in office the trustees of the creditors and stockholders of the company, until others should be appointed in their places by the bank commissioners, to settle the affairs of the bank, collect and pay its outstanding debts, and to divide its property and effects among its stockholders, after paying its debts and necessary expenses. The bill in this cause was filed in July, 1839, against the defendants Woodruff, Hunt and Wood, the then trustees of the corporation, to compel them to transfer, or to allow to be transferred to the complainants, on the books of the bank, eighty shares of stock, of the nominal amount of $2000, which stood in the name of C. F. Mitchell, on the 19th of August, 1837 ; and which he assigned to the complainants on the 16th of December in that year. The assistant vice chancellor decreed a transfer of the stock, on the books of the bank, with costs.

      S. Beardsley, for the appellants.
    When the title to the eighty shares of stock became vested in Mitchell, the bank by its by-laws acquired a lien or equitable claim on such shares for the payment of his indebtedness to the bank. (1 R. S. 600, § 1, sub. 6. Laws of 1829, p. 327, § 3, and p. 329, § 22 and 27. 3 Paige’s Rep. 350, 361.) As the purchaser of the stock could acquire no legal title to it until the transfer was made on the book of transfers of the bank, the complainants took it subject to the equitable claims on it in favor of the company. As the stock was assigned to the complainants in payment of an antecedent debt, the complainants have no equity superior to that of the bank. (2 Wheat. 390. Angel § Ames on Corp. 321. 2 Cowen, 770. 11 Wend. 627.) The eighty shares of stock, by the repeal of the charter of the bank, gave to the holder a mere equitable right to a distributive share of the funds of the corporation ; and the assignee of such right takes it subject to any offset or equitable claim of the bank against the assignor. And the trustees became subject to the same laws which regulate receivers of insolvent corporations, or the trustees of insolvent debtors. (6 Paige’s

      Rep. 220. 2 Id. 581.) Equity requires that cross demands should be set off against each other. Whether the eighty shares be considered as so much stock, or as giving merely a right to a proportion of the funds of the bank, the complainants are not entitled to a transfer of the stock in either case. The trustees have no authority to transfer the stock, unless for the purpose of settling a claim against the bank, or of securing or paying a debt of the bank.

      D. Selden, for the respondents.
    The complainants were entitled to the eighty shares of the stock of the Lockport Bank; and the defendants having assumed the duties of trustees, under the statute dissolving the charter of the bank, were bound to allow the transfer thereof on the books of the bank to the complainants. The charter of the bank was framed according to a general system of legislation, whereby it was intended that the stock of the bank should never be applied to the security or payment of a debt due the bank. All by-laws of the bank in contravention of the charter are void. Even without the provisions of the charter, which prevents the bank from taking its stock as security, the complainants have the better right to the stock in question. The provision which requires a transfer to be made on the books, does not prevent a sale of the stock, but enables the holder of the certificate to claim in equity a transfer, when the transfer is refused. The defendants have no right in or lien upon the stock in question; and even if they could acquire a lien, by the charter, it passed to Mitchell from an individual who was not a debtor to the bank, and from Mitchell to the complainants, under circumstances which precluded the defendants from acquiring any right or lien.
   The Chancellor.

The facts of this case, so far as they can be ascertained from the pleadings and proofs, are as follows : At the time of the repeal of the charter of the Lockport Bank, which repeal took effect on the 4th of June, 1837, C. F. Mitchell owed that institution three notes, of $1830 each, dated the 18th of May, 1837, payable in six, nine and twelve months from date which notes were given for a balance due for moneys previously loaned by the bank to the firm of Mitchell & Lukins, of which firm C. F. Mitchell was one of the copartners. The stock in question was sold and transferred to Mitchell, by E. Leonard, on or before the 19th of August, 1837 ; and it stood in his name on the books of the trustees on that day. Mitchell, and his copartners in the firm of C. F. Mitchell & Co., consisting of himself and Parsons and Gooding, were also indebted to the bank in another large sum, for moneys loaned to them. Mitchell & Lukins were also indebted to the complainants, to the amount of six or seven thousand dollars, for moneys advanced and acceptances paid for that firm; upon which indebtedness a judgment was recovered in May, 1837, and an execution was afterwards issued thereon. Negotiations were subsequently commenced between Mitchell.and some of his friends, and the complainants, relative to staying the proceedings upon that judgment, and upon another judgment in favor of the complainants against him and his co-partners in the other firm ; which negotiations finally resulted in an agreement to give the complainants certain notes, and to assign to them eighty shares of the Lockport Bank stock, in payment of their judgments.

Upon the question as to the time when this arrangement was finally agreed upon, there is some uncertainty in the testimony. But I am satisfied it must have been after this stock had been transferred to Mitchell; although in his direct examination Mitchell appears to suppose that it was before the stock was transferred to him that he obtained the certificate from Judge Dayton. The evidence upon which I base my opinion that the stock was transferred to Mitchell before he made any definite agreement with the complainants to sell them such stock, in part payment of the debt, is this : Mitchell swears that he contracted with Leonard for the stock a short time previous to the 19th of August, 1837, and that he had not made any definitive arrangement with the complainants for the stock at that time. It appears also from the letter of Woodruff, given in evidence by the complainants, that as late as the 21st of September Mitchell had not received any answer to the proposition he had made to the complainants. Mitchell thinks it was the latter part of August when he offered some money, eighty shares of the Lockport Bank stock, and certain notes of hand, as additional security for the complainants’ judgments, if they would consent to a postponement. This was probably the proposition to which Woodruff’s letter referred, and to which the complainants afterwards assented. And Field swears that it was in the fall of 1837 when he called upon the complainants, in behalf of Mitchell, with a memorandum from him stating the new securities that he proposed to give for an extension of time on the executions; and that one of the proposed securities, in that memorandum, was eighty shares of the Lockport Bank stock. Field indeed says that he thinks Mitchell was not then a stockholder in the bank. But in this he is clearly mistaken; as Judge Dayton swears there were eighty shares standing in Mitchell’s name on the 19th of August, when he gave him a certificate to that effect. It is probable, therefore, that Mitchell did not think proper at that time to let the complainants know that he actually held this stock; fearing, perhaps, that they might not consent to the arrangement if they knew that fact but might attempt to reach the stock in -some other way. It is also possible that the proposition submitted through Field may have been made in the fore part of September, and that it is the same proposition alluded to in Woodruff’s letter, to which the complainants had not signified their assent on the 21st of that month.

What then were the rights of Mitchell as betwmen him and the trustees of the institution, or rather as between him and the other stockholders of the institution, on the 19th of August, 1837 1 For the rights of the other stockholders are those which are opposed to the claims of the complainants in this suit. The question whether the bank, while it was in existence, had any lien upon the stock of a debtor for a debt which had not yet become due, does not arise in this case. For if the debtor, before his debt was -payable, would have had a perfect right to sell and transfer his stock, while there was a bank in existence having transfer-rib! e shares which could be transferred so as to give the legal title in such shares to a purchaser, still the dissolution of the corporation put an end, immediately, to the transferable nature of the stock. And it thus reduced the interests of the stockholders to mere equitable rights to their several distributive shares of the corporate funds, upon principles of equal justice and equity among all the stockholders, after paying all debts and expenses. The stockholders were then, in this respect, in the same situation as the distributees of the estate of a deceased-parent or relative. There the executors or administrators are bound to give to each distributee his share of the decedent’s property. But if any of the distributees are indebted to the estate, whether such debts are due and payable immediately or are to become due at a future day, their debts, with a rebate of interest if payable at a future time without interest, must first be applied towards or in part payment of their distributive shares of the estate ■, and the balance alone can-be recovered by them from the personal representatives of the decedent. At least such is the rule of equity where the distributee who is indebted to the estate is insolvent or irresponsible. And this right to a distributive share of the estate being a mere chose in action, the owner thereof cannot assign it to a third person, so as to give the latter any greater or other interest therein than the assignor himself possessed.

Here, if Mitchell had been the owner of these eighty shares of stock at the time of the repeal of the charter, on the 4th of June, 1837, he could only have claimed his share of the effects of the defunct institution, after deducting therefrom the debt due from him on the three notes of the 18th of May, 1837. And if the trustees had paid him the full amount of his distributive share of the assets, leaving those notes unpaid, it would have been a violation of their trust, for which they would have been answerable to the other stockholders, if the amount of such notes had been afterwards lost to the fund. And when Mitchell bought Leonard’s distributive share of the funds of the institution, which by the answer and the testimony it appears he did about the 17th of August, if there was no prior legal or equitable claim existing against such share in favor of these complainants, Mitchell was placed in the same situation, in relation .to his right to a distributive share of the fund, as though he had been the owner of that stock at the time of the dissolution of the corporation. His subsequent agreement to assign it to the complainants, therefore, gave them no equitable right to claim a share of the fund belonging to the other stockholders, which Mitchell himself could not have claimed had he continued to be the owner of that distributive share; that is, they took his interest in the fund subject to the payment of his notes, which interest must first be applied in satisfaction of them.

If the trustees have any other securities, belonging to Mitchell, which they hold as collateral to the payment of the notes, the complainants will be entitled in equity to such securities, upon payment of the debts due from Mitchell to the bank. But if the payment of the notes was only guarantied by third persons who stood in the situation of mere sureties for Mitchell, at the time he sold his interest in this part of the effects of the defunct institution to the respondents, the rights of those sureties will be paramount to those of the complainants; for the complainants sit in the seat of their assignor, and can claim no equitable rights which he could not have claimed, as against his sureties, if he had not assigned his interest in these eighty shares. This bill is not properly framed to reach any such collateral securities which the defendants hold, nor is it suggested in the bill that they have any such. No examination as to rights of that kind, therefore, can properly be made in this suit. But as it is suggested that the defendants hold securities of some kind for the debt of Mitchell, or for some part thereof, the decision in this case ought not to prejudice the cornplainants, if they can hereafter show that there will be any thing due to Mitchell as a distributee of the fund in the hands of the receivers, over and above his debts, after applying to the payment of such debts any money or property, or securities belonging to him, which are held by the defendants for the payment thereof, and which ought to be so applied in equity.

The decisions referred to, which have been made by courts in relation to the sale and transfer of stock in corporations which are existing and in full life have no bearing upon the case now under consideration, for the reasons above suggested. Nor does the stock-jobbing act apply to sales of distributive shares of the effects of a corporation which is dissolved; such shares not being stock, but mere choses in action which are not negotiable.- I have not thought it necessary, therefore, to consider any of the cases as to the transfer of stocks in existing institutions, or as to agreements to purchase stocks which did not belong to the vendor at the time of the agreement. And as the complainants wholly failed to show that they were entitled to this distributive share of the stock, without paying the notes of Mitchell, it is not necessary to examine the question whether the other stockholders of the bank, who alone were interested in resisting the claim of the complainants, were not necessary parties to the suit.

The decree of the assistant vice chancellor must be reversed, and the complainants’ bill dismissed with costs. But it must be without prejudice to any claim that they may have to any securities in the hands of the defendants, belonging to Mitchell, beyond the amount of the debts for which they are pledged, after applying his distributive share in the funds of the institution towards such debts. And neither party is to have costs as against the other in this court.

Decree accordingly.


author: The Chancellor

text:
    The American Bible Society and J. Adams vs. Hague, executor, &c.
    1844. January 17.
    Where the complainant amends his bill after a plea to the same has been disallowed, the defendant may put in a new plea to the amended bill.
    This was an appeal, by the complainants, from a decision of the vice chancellor of the first circuit, denying an application to strike the defendant’s plea off the files for irregularity. After a plea had been disallowed the complainants amended their bill, and the defendant thereupon put in a new plea to the amended bill.

      L. M. Rutherford, for the appellants.

      J. L. Mason, for the respondent.
   The Chancellor

said, that where the complainant amends his bill the defendant has the right to plead, answer or demur to such amended bill.' That the plea in this case was therefore regular, although a second plea could not have been put in to the original bill without the special leave of the court.

Order appealed from affirmed with costs.


text:
    Vroom, administratrix, vs. Van Horne and others.
    Where a resident of New-Jersey filed a bill in the court of chancery of the state of New-York, as the junior mortgagee of lands in this state, to redeem such lands from a prior mortgage, and the complainant died pending the suit, and his widow who had taken out letters of administration upon his estate in the state of New-Jersey, afterwards compromised the suit with the defendants and gave them a release of the decedent’s mortgage and of the right to redeem by virtue of the same; and after such release the widow of the decedent took out letters of administration in this state, and then filed a bill of revivor and supplement, as such administratrix, to revive the suit and to set aside such compromise; Held, that the grant of the letters of administration in this state related back to the time of the death of the intestate, and estopped the administratrix from alleging that she had no right to compromise the claim and to release tile defendants. ¡,_
    1844. March 5.
    And it seems that if a third person had taken ont letters of administration in this state, after the release and compromise by the administratrix appointed in New-Jersey, where the decedent was domiciled, the court of chancery here would not have interfered to declare the compromise and release void, if there were no creditors here who had claims against the estate of the decedent.
    The succession to the personal property, of a person dying intestate, is governed ■ by the law of the place where the decedent was domiciled at the time of his death.
    In cases of intestacy, the right of'the administrator, where he is not entitled to the succession, depends upon the grant of power to administer the decedent’s property, by the proper tribunal. And such grant of power cannot extend, as a matter of right, beyond the territory of the government making the grant; even where the grant is by the proper tribunal of the place where the intestate was domiciled at the time of his death.
    The right of an administrator to recover the property, or to recover the debts due to the decedent, out of the territorial jurisdiction of the government where the grant of administration is obtained, and which property or debts cannot be reached through the medium of its courts, depends upon the comity of the state or country where the property is situated, or where the debtor of the intestate resides, or where the estate upon which such debt is a lien is found.
    As a general rule an executor or administrator who has been duly authorized to administer the decedent’s estate, by the proper tribunal of the place where the decedent was domiciled, to enable him to bring a suit in relation to tire decedent’s property in another state or country than that in which the decedent was domiciled, must obtain ancillary letters testamentary, or of administration, in such state or country.
    But it seems that the probate of the will of the decedent, or the grant of letters testamentary or of administration, by the proper tribunal of his domicil, is sufficient to authorize his executor or administrator to take charge of the property of the decedent and to receive debts due to him in this state, where . no suit is necessary, if there is no conflicting grant of letters testamentary or of administration here.
    This was an appeal from a decree of the late assistant vice chancellor of the first circuit, dismissing the complainant’s bill of revivor and supplement. The original bill was filed by Peter Yroom, a resident of the state of New-Jersey, as a junior mortgagee of a lot of land in Seneca oounty, to redeem the mortgaged premises from a statute foreclosure and sale which had taken place under a prior mortgage. The purchaser at that sale had conveyed the premises to the defendant Van Horne 5 who subsequently conveyed to P. Smith, wiih warranty ; and Van Horne and Smith, together with Ditmas and wife, were made defendants in that suit. Smith afterwards died and the suit was revived against his heirs at law. The cause was heard before the vice chancellor of the seventh circuit. He decided in favor of the complainant’s right to redeem under his smallest mortgage, for $312 and interest, but came to the conclusion that the other mortgage, which was for $690 and interest, was void for usury. He accordingly decreed that the complainant should be permitted to redeem, and that the premises be sold to satisfy the amount due upon the $312 mortgage, unless the defendants should elect to pay that amount; but that in case of such election and payment the premises should be discharged from both mortgages. A reference to a master was directed accordingly, and both parties were decreed to pay their own costs. In October, 1831, the solicitor for P. Vroom, the then complainant, gave notice of an appeal from the whole of that decree, except so much thereof as declared the complainant’s right to redeem under his $312 mortgage. Vroom died in November, 1831, and a few days thereafter administration upon his estate was granted to his widow, the present complainant, by the surrogate of Somerset county, in New-Jersey, where the decedent *38 domiciled at the time of his death. The solicitors of the respective parties, being unaware of the death of Vroom, brought the case to argument upon the appeal, in the summer of 1832. And in August, 1834, the chancellor delivered his opinion affirming so much of the decree of the vice chancellor as related to the costs, but reversing the part thereof which declared the $690 mortgage to be usurious and void, &c. This decree, upon a subsequent application, was directed to be entered nunc pro tunc as of some day subsequent to the appeal and previous to the death of P. Vroom but without prejudice to the right of the defendants, upon an application to revive the suit, to insist upon the release hereafter mentioned as a bar to the revival of the suit, in the name of the personal representatives of the decedent or otherwise. (See 4 Paige’s Rep. 526; and 5
      Idem, 528, S. C.) The decree upon the appeal was entered accordingly.
    In the fall of 1832, while the appeal was pending and undecided before the chancellor, Van Horne met with a neighbor of Mrs. Vroom, the administratrix, and learning from him that, she and the family were disposed to compromise the suit, a negotiation took jDlace between the defendant Van Horne and the administratrix, which finally resulted in an agreement to compromise the suit, except so far as related to the personal liability of Ditmas, upon Van Horne’s paying to her $300, and each party paying their own costs. This arrangement was completed in February, 1833, and the $300 was paid to her as the administratrix of her deceased husband. And she thereupon, as such administratrix, executed an instrument under her hand and seal, releasing and discharging the two mortgages, and Van Horne, and all others interested in the mortgaged premises except Ditmas, from all suits, complaints, orders and decrees for or on account of such mortgages. But as neither party gave any notice of this compromise of the suit to the chancellor, he subsequently examined and decided the case upon the appeal, without being aware that any such settlement had been made.
    In September 1836, the complainant applied to the surrogate of New-York, and upon an allegation that assets belonging to the decedent had since his death come into that county, she obtained letters of administration in this state. And she thereupon filed her bill of revivor and supplement in this suit, as such administratrix, to set aside the compromise and release so made and executed by her in New-Jersey, as the administratrix appointed under the laws of that state, and to revive the suit and have the benefit of the decree made upon the appeal to the chancellor. The bill alleged fraud and misrepresentation, on the part of Van Horne, in obtaining the release ; which was denied by the answers. The cause was heard upon the pleadings and proofs before the assistant vice chancellor, to whom it was referred for decision. He arrived at the conclusion that the compromise and release were fairly made and obtained; and that they constituted a valid discharge of the claim upon the premises under the two mortgages, although the complainant had when the compromise was made only tak- • en out administration in the state where her husband was domiciled, at the time of his death. He therefore dismissed the complainant’s bill of revivor and supplement as to the defendant Van Horne and the heirs and representatives of Smith his grantee, but without costs. From this decree the complainant appealed to the chancellor.

      Asgill Gibbs, for the appellant.

      L. H. Sandford, for the respondents.
   The Chancellor.

The assistant vice chancellor was unquestionably right in supposing that there was nothing in this case to justify him in setting aside the release, and compromise, upon the ground that they were obtained by fraud or misrepresentation, or by the concealment of any material fact from Mrs. Vroom which it was the duty of the adverse party to communicate to her upon making such a compromise. On the contrary, I think Van Horne’s letter to the complainant, of the 23d of January, 1833, contained as fair and impartial a statement of the. whole transaction, and of the then state of the litigation and of the probable result thereof, as any one could reasonably expect in such a case. And I have not been able to find any evidence that all the material facts stated in that letter were not substantially true. As to the complainant’s costs in the proceedings before the vice chancellor, previous to the appeal, having been paid, Van Horne does not speak of it as a fact as to which he has any personal knowledge $ but, as I understand the letter, he refers to it as a matter of which she has herself the means of knowledge. ■ From the testimony of Lowe, Van Horne certainly had, at that time, reason to suppose that the decedent had paid those costs. He also had a right to presume that the solicitor of Vroom, the original complainant, had communicated to his client the result of the vice chancellor’s decision. And whether he was right, in point of law, in supposing that the solicitor would himself be liable for the costs, if the appeal was carried on without the knowledge or consent of the client, was a question about which one party was probably as competent to judge as the other. From Mrs. Vroom’s letter of the 4th of February, it is probable she had consulted with Gov. Vroom, the relative of her husband, on the subject. And if she chose to accept the compromise offered, instead of following his advice, or consulting with the solicitor who had the charge of the suit in this state, it certainly was not the fault of Van Horne.

If the question of inadequacy of consideration could arise upon a compromise of this kind, it would be proper to determine it by the probable result of the litigation at the time when such compromise was made. At the time of the compromise a decree had been made by the proper tribunal declaring the large mortgage void ; under which decision it would probably cost at least fifty dollars, as stated in Van Horne’s letter, to execute the reference as to rents and profits, &c. and to take the other necessary steps to perfect the decree, so as to entitle the administratrix to the amount due upon the $312 mortgage. Those costs the decree had directed to be borne by the complainant ; as they were for proceedings which must necessarily be taken by her solicitor to entitle her to payment if the decree was affirmed. And if she went on with the appeal and it should be decided against her, in case she sanctioned the proceedings of her solicitor which she states in her letter to have been had without her knowledge, the estate of her husband would be subjected not only to the costs of the adverse party, which were relinquished by the compromise, but also to the costs of her own solicitor upon the appeal; even if the party against whom a decision was made should not think proper to carry it to the court of dernier resort. For if the. decree of the vice chancellor was affirmed upon appeal, it was almost a matter of course to charge the appellant with the costs. Whether a discreet and prudent lawyer would have advised such a compromise, upon this state of facts, must therefore have depended upon his opinion as to the probability of the eventual success of the complainant, upon the questions raised by the appeal, in this court, and in the court of dernier resort.

It remains to consider whether the complainant can succeed upon the technical ground, that she could not compromise the claim for this debt, depending upon an equity to recover it out of real estate here, under the letters of administration granted upon her husband’s estate in New-Jersey. The law is well settled, not only in this state but as I believe in nearly every civilized country, that what may properly be considered as the personal estate of a deceased person is to be treated, for the purposes of the succession, as having no other locality than that of the decedent’s domicil. And if he dies intestate the succession is governed by the law which prevails in the place where he was domiciled at the time of his death. (Bruce v. Bruce, 2 Bos. & Pul. Rep. 229, n. a. Bempde v. Johnstone, 3 Ves. 198. Story’s Conf. of Laws, 2d ed. 403, § 481. 4 Burge’s Conf. of Laws, 156.) But the recovery of the property, and the distribution thereof after making provision for the payment of the debts of the decedent, must, from the necessity of the case, very frequently depend upon the lex loci rei sitce ; especially where suits are necessary to enable those who are entitled to the succession to reduce the effects to possession. By the laws of some states, and countries, where the decedent has made a will, and was named an executor to administer his estate, such executor becomes entitled to the possession of the whole of the personal estate of the testator immediately upon his death ; and actual probate of the will is only necessary to enable the executor to recover the property by suit. Such was the English common law, and the law of this state previous to the revised statutes. Where such a law exists, the probate and granting of letters testamentary is a mere legal form ; as such an executor does not derive his title from the letters testamentary, but under the will. He may therefore take possession of the property, receive payment of debts, and may release a right of action, before such letters are granted. (Coke Litt. 292, b. Hensloe’s case, 9 Coke 39, a. Smith v. Milles, 1 Dur. & Ea. Rep. 480.) But in cases of intestacy, the right of the administrator, except where he is the person entitled to the succession, must, in equity as well as at law, depend upon his grant of a power to administer, by the proper tribunal. And even where such a grant has been made by the tribunal of the state or country where the decedent was domiciled at the time of his death, the grant, as Judge Story very correctly observes, cannot extend, as a matter of right, beyond the territory of the government making the grant. [Story's Conf. of Laws, 421, § 512.) The right of such administrator to recover property, or debts, belonging to the decedent, beyond the territorial jurisdiction of the government making the grant, and which cannot therefore be reached through the medium of its courts, must of course depend upon the comity of the state or country where the property is situated; or where the debtor, or his property upon which the debt is a lien, is found. Hence difficulties must frequently arise in collecting the debts, and in administering the personal estate of the decedent, where his property and the debts due to him are in several different states, or countries, whose laws are dissimilar.

As a general rule, both in England and in this country, to enable an executor, or an administrator who has been duly authorized to administer the decedent’s estate by the proper tribunal of the place where he was domiciled, to bring a suit in relation to the personal property in another state, or country, he must obtain ancillary letters testamentary, or of administration, where the suit is intended to be brought.

The courts of this state, however, appear to have considered the probate of the will, or the grant of letters testamentary or of administration, in the proper tribunal of the decedent’s domicil, as sufficient to authorize the executor or administrator to take charge of the property here, or to receive debts due to the decedent in this state, where there is no conflicting grant here, and when it can be done without suit. In the case of Doolittle v. Lewis, (7 John. Ch. 49,) one of my learned predecessors expressed a pretty decided opinion that the executor, or administrator, of a creditor dying in another state, and becoming lawfully possessed of a bond, as a part of his assets, given and secured upon lands in this state, was competent to receive payment, and to give an acquittance for the debt, without first resorting to the probate court here. So in a subsequent case, (Shultz v. Pulver, 3 Paige, 182,) this court thought the executor, or administrator, of a decedent who was domiciled here, was bound to use due diligence, to collect securities, which had come to his hands, against a debtor who resided in another state. That decision was affirmed upon appeal to the court of dernier resort. (11 Wend. Rep. 361.) And in the case of Trecothic v. Austin, (4 Mason’s Rep. 33,) Judge Story, in speaking of payments voluntarily made by debtors residing in this country to an administrator appointed in England, upon the estate of a person domiciled there, says, such payments voluntarily made to a foreign administrator would now be held effectual in our courts, upon principles of national comity. If a third person, therefore, had taken out administration in this state, after the accord and satisfaction and the release of the equity to charge this debt upon the lands here, by the administratrix appointed in the place of the decedent’s domicil, I am inclined to think that a court of equity ought not to have interfered to declare the compromise void, when there were no creditors here having an interest in the question; though I admit the adoption of such a principle is not without its difficulties.

I prefer, however, to put my decision sustaining the decree of the assistant vice chancellor, upon an entirely different ground. • Here the New-Jersey administratrix, who received the |300 and executed the release, is the same person who afterwards obtained administration in this state, and now files this bill to avoid her own deliberate act. This I think a court of equity ought not to permit her to do, even if that act was unauthorized ; especially after waiting until she found that the case had been decided in favor of the estate of her deceased husband, upon the appeal. The grant of administration has relation to the death of the intestate, and it legalizes all intermediate acts of the administrator. (Vaughan v. Brown, Andrews’ Rep. 333. Curtis v. Vernon, 3 Durn. & East, 590.) Thus where the administrator, before he had taken out letters of administration upon the estate of the intestate, delivered a horse to another for his expenses in burying the decedent, and afterwards brought trover.for the horse, it was decided, by a majority of the judges of the court of king’s bench, that the action could not be maintained. For, say they, it is directly against his own agreement and contract, and the plaintiff himself is a particeps criminis if any thing is done amiss ; and it is not reasonable that he should be allowed to bring his action against the defendant for doing a thing to which he not only consented but jointly acted therein with the defendant. (Whitehall v. Squire, Holt’s Rep. 45 ; Carth. Rep. 103, S. C.) So in Witt v. Elmore, (2 Bail. L. R. 595,) O’Neill, J., in delivering the opinion of the court of appeals in South Carolina, says, “ 1 have no doubt but that administration granted to an executor de son'tort will, by relation, cure his tortious acts. But that cannot avail the defendant here 5 for the effect of the rule is to legalize the acts, done as executor de son tort, both for and against him.” And in a more recent case in the same court, where a recovery was had against a person who had intermeddled with the property of the decedent, as executor de son tort, and such person was afterwards appointed administrator, by the proper tribunal, it was held that the judgment was a valid claim against the estate in his hands as administrator ; that the administrator himself was estopped from denying the validity of the judgment as a charge upon the estate ; and that he represented all creditors and distributees, and they were bound by his acts, unless in case of fraud or.collusion. (Walker v. May, 2 Hill’s Ch. Rep. 23.)

In the case now under consideration, I think the grant of administration to the complainant, in this state, had relation back to the time of the death of her husband. And as the accord and satisfaction and release were obtained in good faith, she should be estopped from insisting that, at the time she received the $300 and executed the release of the equity of redemption in the mortgaged premises, she had no right to receive the money and execute such release. The decree appealed from must therefore be affirmed with costs.


text:
    Cowman vs. Lovett and Gillender.
    1844. March 5.
    Where a motion to dissolve an injunction in a suit pending before the chancel. Ior is referred to a vice chancellor to be heard and decided, such reference does not carry the whole cause to the vice chancellor, so as to give him jurisdiction, upon the decision of that motion, to make an order allowing an amendment of the complainant’s bill. But if he thinks the injunction should be dissolved, without prejudice to the complainant’s right to apply to renew it upon an amended bill, he should make an order accordingly; and should leave the complainant to make his application to the chancellor for liberty to amend and to have the injunction restoi ed upon such amended bill.
    An application to set aside a proceeding for an irregularity which is merely technical, must be made the first opportunity.
    The defendant cannot put in a demurrer, to the complainant’s bill, under a chamber order extending the time to answer, after the usual time for answering has expired. But where the complainant amends his bill after such an order, the defendant has forty days to demur, as well as to answer, after the service of a copy of the amendment upon him.
    Where the complainant amends, after answer, if he waives a further answer to the amendments, he must give notice to the defendant of such waiver, and that the defendant will be considered as having elected to let his former answer stand as an answer to the bill as amended unless he answers such amended bill within forty days.
    A new order to answer is necessary where the complainant amends his bill before the defendant has answered the original bill.
    This case came before the chancellor upon three distinct motions. The first was an application, on the part of the defendant Lovett, to vacate or discharge so much of the order of the vice chancellor of the first circuit as allowed the complainant to amend his bill and to move to reinstate the injunction which was dissolved by such order. The second was an application, on the part of the complainant, to take the demurrer of the defendant Lovett off the files of the court, for irregularity. And the third was a motion, on the part of the defendant Lovett, for leaye to file a new demurrer to the complainant’s amended bill in case the motion on the part of the complainant should be granted.

      M. T. Reynolds, for the complainant.
    D. D. Field, for the defendant Lovett.
   The Chancellor.

The motion to vacate or discharge a part of the order of the vice chancellor, of the 6th of November, 1843, allowing the complainant to amend, &c. is not properly made to this court, and must be denied. But I am inclined to think that the part of the order complained of was erroneous, if not irregular. The cause was commenced and was pending before the chancellor. And the reference to the vice chancellor of the motion to dissolve the injunction, did not give him jurisdiction to make an order to amend the bill, in the suit which was still pending before the chancellor. The proper order therefore would have been that the injunction be dissolved, but without prejudice to the complainant’s right to apply to the chancellor to renew the injunction upon an amended bill; thereby leaving the complainant to apply here to amend his bill, and to have the injunction restored, if he thought proper to make such an application. But as this order is not entered in the suit before me, but in the office of the clerk of the vice chancellor, if it is erroneous it can only be brought before me upon appeal. And if it is irregular merely, the proper course is to apply to the vice chancellor himself, to correct the supposed irregularity in the proceedings before him. The order of the 6th of December, 1843, was not intended to declare the right of the defendant to apply here for relief, but merely to reserve to him the privilege of applying here, if upon examination of the question his counsel should advise him to apply here to set aside the order, as well as the amendments which had been filed under the supposed authority contained in such order. So much of that motion as seeks to have the amendments stricken from the files must also be denied. For there is no proof of the service of Hall’s affidavit, of the 8th of January, to be used upon this motion, the due service of which affidavit is denied. And without that affidavit there is nothing to show that the amendments have not been duly filed, under an order made by the proper officer of the court before whom the suit was pending. Again; the amendments were served as early as the 15th of November, and the alleged irregularity may be considered as only technical at most. In such cases the application to set aside the proceedings must bema de the first opportunity.

Considered as a demurrer to the original bill, the demurrer filed by the defendant Lovett was clearly irregular. For the time for answering the original bill expired on the 28th of November ; and- the defendant could not put in a demurrer under the chamber order for further time to answer, which was granted by the vice chancellor on that day. (Burrall v. Raineteaux, 2 Paige’s Rep. 331.) But the amendments to the bill being now considered as regularly made, and served on the 15th of November, the defendant Lovett had forty days from that time to answer or demur to the amended bill, under the provisions of the 45th rule of this court. Where the bill is amended after answer, if the complainant requires a further answer to the amended bill, he must enter a new order, that the defendants answer the amendments within forty days or that the bill as amended will be taken as confessed, or that an attachment issue, if a discovery is required in answer to the amendments. (8 Paige's Rep. 595.) And even where an answer to the amendments is waived, where an answer to the original bill has already been filed, the complainant must give a notice of such waiver, and that unless the defendant shall answer the amended bill within forty days he will be considered as having elected to let his former answer stand as an answer to the bill as amended.

But the practice does not appear to be settled, as to the necessity of a new orde.r to answer the amended bill, where the amendments are made before any answer, plea or demurrer to the original bill has been filed. I am inclined to think, however, that the proper practice in such a case ■ is to enter a new order, to answer the bill as amended ; giving the same time to answer which the defendant originally had, in conformity with the provision on that subject contained in the 45th rule. And a notice of such order, to answer the bill as amended, should be served on the defendant’s solicitor. In this case no such order appears to have been entered, nor- was any new notice served with the amendments to the bill. I think, therefore, this demurrer was filed and served in time to make it regular, as a demurrer to the bill as amended, notwithstanding the chamber order of the 23d of November ; which order could only be of use, to extend the time to answer the original bill, in case the defendant should succeed in setting aside the amendments as irregularly filed. The demurrer must therefore be permitted to stand as a regular demurrer to the bill as amended. And neither party is to have costs as against the other upon these applications.

The cause being how in readiness for hearing, upon the amended bill and the demurrer thereto, it is referred to the vice chancellor of the first circuit to hear and decide the case upon such demurrer.


text:
    Brewster vs. Power.
    The trust which results in favor of creditors, under the provisions of the revised statutes relative to uses and trusts, where a grant is made to one person and the consideration therefor is paid by another, is only a trust in favor of those who were creditors, of the person paying the consideration, at the time when the conveyance was executed and such consideration was paid.; And there is no resulting trust in favor of creditors whose debts are subsequently contracted.
    Where there is a resulting trust in favor of the creditors of the person who pays the consideration for real estate and takes a conveyance in the name of another, in fraud of their rights, it seems that a judgment recovered by one of such creditors is in equity a lien upon such real estate, except as against bona fide purchasers without notice; although such estate cannot be sold under an execution upon the judgment.

      1844. March 5.
    Upon the sale of mortgaged premises upon a statute foreclosure, where the premises arc struck off to the mortgagee, the affidavits of the publication and of the affixing of the notices of the sale and of the circumstances of the sale, have the same effect, in vesting the title in the mortgagee, as a deed would have in vesting the title in a stranger who had become a purchaser. And parol evidence is not admissible, to prove that the premises were purchased in trust for a third person, and not for the benefit of the mortgagee in whose name the purchase was made, to establish a trust in favor of such third person.
    The interest which a judgment debtor has in lands, under an executory contract of purchase, cannot be sold upon execution, under the provisions of the revised statutes. Nor is his equitable interest in the premises, under such a contract, bound by the docketing of the judgment.
    This was an appeal from a decree of the vice chancellor of the seventh circuit, dismissing the complainant’s bill with costs. The object of the bill was to obtain from the defendant Abiathar Power, a conveyance of the title to the undivided half of a lot of land in the county of Ontario, under the following circumstances : Arthur Power, who owned the whole lot, conveyed it to R. W. Brace, in June, 1828; Brace paid down $300 of the purchase money and gave a mortgage upon the premises, and two notes as collateral security, for $550,50 and interest, for the balance. Brace having died without paying the mortgage, an arrangement was made with his representatives and with the mortgagee, by which the mortgage was to be assigned to the defendant and his son-in-law J. H. Ford, and was to be foreclosed, and they were to give the representatives of Brace $100 for their interest in the premises. The defendant and Ford accordingly, in June or July, 1830, gave their joint note to the mortgagee, for the amount of the mortgage and interest, and also their joint note to the representatives of Brace for the $100, and the mortgage was thereupon assigned to the defendant and Ford. They immediately advertised the property for sale under the statute, in their joint names as assignees, and on the 14th of January, 1831, the premises were sold and were bid in for, the sum of $379,72, in their joint names as such assignees ; and the affidavits of the publication, and of the regularity of the sale, were made and duly recorded the next clay thereafter. In the spring of 1834 Ford failed, and'gave a judgment to his brothers-in-law, upon a bond and warrant for $8000, conditioned for the payment of about $4000 ; which judgment was docketed on the 5th of April, 1834. Under this judgment all the interest of Ford in the lot in question was sold by the sheriff, in November, 1834, to W. Power, one of the plaintiffs in the judgment, for $600; the bidders at the sale being informed by him that Ford, the defendant in the judgment, only owned one half of the lot.
    In May, 1834, J. C. Brewster, the original complainant in this suit, recovered a judgment against Ford for about $275 ; under which judgment Brewster redeemed from the sale to W. Power, and took a deed from the sheriff, in February, 1836, Shortly thereafter the complainant filed hisbill in this suit, alleging among other things that the purchase and foreclosure of the bond and mortgage were made for the sole benefit of Ford ; that the defendant executed the notes with him as a mere surety, and with the understanding that the defendant was to have no interest in the as? signment further than to indemnify him as such surety; and that Ford afterwards paid the whole amount of the notes, given to the mortgagee and to the representatives of Brace by himself and the defendant. And the complainant prayed that the defendant might be decreed to release the premises to him, and to deliver up the possession thereof, and to account for the rents and profits, &c.
    The defendant, by his answer, denied that the mortgage was purchased and foreclosed for the sole benefit of Ford, and alleged that he originally made the arrangement for the purchase of the mortgage on his own account, and after-wards consented to take in Ford,his son-in-law, to be jointly interested with him, and that they gave their joint notes for the purchase money, and each paid his half thereof; except that he signed a note with Ford for $150 to J. Smith, to enable Ford to make his half of one of the payments, and for which Ford agreed that he should have a lien upon his half of the premises for his security, and except that Ford turned out a note upon another payment, which exceeded about $60, his share of such payment, for which the defendant afterwards accounted with him, upon a settlement made between them in January, 1836. The defendant also, in answer to an allegation in the bill that Ford had the exclusive possession of the premises from the time of the purchase of the mortgage, stated that immediately after the arrangement for the purchase of the mortgage he and Ford took possession of the premises, and that it was then agreed between them that the defendant should have the use of the pasture, and Ford of the plough-land, and that Ford should pay the taxes on the whole ; and that they thus occupied the same until the spring of 1834, when they made a different arrangement and occupied different portions of the ploughland and pasture in severalty, during that year and the next. Much testimony was taken in relation to the matters put in issue between the parties, and some as to matters not in issue ; and the cause was heard before the vice chancellor upon pleadings and proofs, after the death of the original complainant, and after the suit had been revived in favor of the appellant, as his surviving devisee and executor.

      L. H. Sandford, for the appellant.
    The purchase of the premises in question, at the mortgage sale, was for the sole and individual benefit of Ford. The defendant was associated with Ford merely as surety, and the mortgage was assigned to them jointly to indemnify the defendant as such surety ; and the bid was made in their joint names at the mortgage sale, to make this indemnity effectual. The evidence shows that Ford paid for the land, whereby the defendant’s lien, which was in the nature of a mortgage, became satisfied. If the defendant had an equitable lien on the land, he cannot set it up now, having claimed to be the absolute owner of the undivided half of the land, in fraud of Ford’s creditors. The answer contradicts itself and is discredited by the proofs, and is therefore not evidence for the defendant. The defendant’s right, if any, being a mere mortgage interest, can be shown by parol evidence. (1
      John. Ch. Rep. 594. 4 Id. 167.) So a resulting trust, as where one purchases land with his own money but takes a deed in the name of another, maybe proved by parol. (1 John. Ch. Rep. 582. 2 Id. 405.) If it be said that the revised statutes have altered the law of trusts, the answer is, that the complainant was a creditor of Ford, and the claim of the defendant is presumed fraudulent as against him, Ford having paid the consideration for the land.

      A. Taber, for the respondent.
    The case, if any, made by the complainant’s bill, seems to be one of a simple resulting trust, created by the acts of the parties to the trust. It comes within no definition of a mortgage, legal or equitable. And the bill alleges no fraud, nor any indebtedness by Ford to any one, until after the legal title had vested, and the land was fully paid for. The gravamen of the bill, that Ford negotiated and paid for the whole of the land,.is distinctly and positively denied in the answer. All or nearly all the evidence in the case upon these questions in controversy, except hearsay declarations, supports the answer and contradicts the bill. The evidence relied on by the complainant was for the most part inadmissible, and is altogether insufficient to establish a resulting trust, or in any manner to defeat the legal title and possession of real estate. (1 Wend. 625. 6 John. 39. 7 Id. 186. 10 Id. 336, 358. 6 Wend. 228, 277. 6 Cowen, 751.) But granting that the answer and the defendant’s witnesses are all discredited, and the bill proved, still the complainant shows no right to the relief he asks for, nor any other in this court. The trust, if any, was created since the revised statutes, and if a valid one, the same statutes, for the express purpose of preventing oppressive litigation in this court, convert it into a legal estate which is vested in the complainant, and to enforce which he shows no valid reason in his bill for coming into this court. But it is not a valid trust; it is declared void by statute. And it vested no interest or title, legal or equitable, in Ford or in those claiming under him. Since the revised statutes, an equitable estate cannot be sold on an execution at law, and for the recovery of a legal one thus sold, the aid of this court is neither necessary nor proper.
   The Chancellor.

There is no allegation in the bill that the defendant ever gave to Ford a conveyance of his interest in the undivided half of the premises, to which the defendant acquired the legal title by the purchase under the statute foreclosure. The evidence of the declarations of Ford as to the pretended quit claim deed must therefore be laid entirely out of the question, even if they could have been legal evidence against the defendant upon any state of pleadings. Besides, if an allegation of that kind had been contained in the bill, it would have rendered it demurrable ; upon the ground that the remedy of the complainant, if any, was at law, by an ejectment suit to recover the possession of the undivided half of the premises claimed by the defendant.

The question then arises, admitting the allegations in the complainant’s bill to be true, whether Ford had such an interest in the half of the premises which was struck off to the defendant, upon the statute foreclosure, as to render it liable to a sale by the sheriff upon execution, and to a redemption by a junior judgment creditor. Previous to the revised statutes if a person purchased real estate and paid for it with his own means, and took a conveyance of the legal title in the name of another, there was, in equity, a resulting trust in favor of the one who paid the money ; except where it satisfactorily appeared that the purchase was intended as a gift or advancement to the person in whose name the conveyance of the legal title was taken. But such an equitable interest in land, where the legal title was in the person in whose name the conveyance was taken, could not be sold by the sheriff, upon execution against the cestui que trust, previous to the statute 29th Charles 2d, chapter 2d, § 10 ; which statute was adopted as a part of the law of this state, and continued in force here until the revised statutes went into effect, on the 1st of January, 1830. (See 1 R. L. of 1813, p. 74, § 4.) By that statute, where the judgment debtor had the whole beneficial interest in the land by virtue of a resulting trust, a sale by virtue of an execution against such debtor operated to vest the legal title in the purchaser, under the sheriff’s deed. And as a subsequent judgment against the cestui que trust was a lien in equity, though not at law, upon his interest in the land, probably the owner of such judgment, by the equity of the statute of the 12th of April, 1820, authorizing a redemption of lands sold on execution, would be authorized to redeem, and to take the title in his own name.

The revised statutes, however, made an entire change in the law on this subject. By the 51st section of the article of the revised statutes relative to uses and trusts, it is provided that where a grant for a valuable consideration shall be made to one person and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made ; but the title shall vest in the person named as alienee in such conveyance, subject only to the provisions in the next section. (1 R. S. 728.) And the next section declares the-conveyance to be presumptively fraudulent only as against persons who were at that time creditors of the person paying the consideration ■ but not as against creditors whose debts were subsequently contracted. Here the legal title to one half of the lot in controversy passed to the defendant, by the purchase under the statute- foreclosure, on the 14th of January, 1831. For by the 14th section of the article of the revised statutes relative to the foreclosure of mortgages by advertisement, (2 R. S. 547,) where the mortgaged premises are purchased at the sale by the mortgagee, or his assigns, the affidavits of the publication and of affixing the notice of sale, and of the circumstances of such sale, are not merely evidence of the regularity of the foreclosure ; but they are, without the formality of a conveyance, to have the same effect as a conveyance executed by a mortgagee to a third person upon such a sale would have had. No parol evidence, therefore, can be received to establish either án express or an implied trust as to this half of the premises, in favor of Ford. And even if the defendant had given a written agreement to convey that half of the premises to Ford, upon his paying the whole amount of the purchase money of the mortgage, and the $100 to the representatives of Brace, Ford would not have had an interest in that half of the premises which could have been sold on execution against him. For by another provision of the revised statutes, (1 R. S. 744, § 4,) the interest of a person holding such an agreement is not bound by the docketing of any judgment or decree, nor can it be sold upon an execution. But to enable the creditor to reach such an interest of his debtor he must first exhaust his remedy at law, by the issuing of an execution and a return thereof unsatisfied, and then file a bill in this court, to have the defendant’s interest sold and applied to the satisfaction of the judgment. To obtain such relief, the debtor himself also appears to be a necessary party. Here there is no pretence that the remedy of the complainant has been exhausted at law, by the return of an execution unsatisfied, nor is Ford the judgment debtor a party to the suit. On the contrary, the whole claim to relief proceeds upon the supposition that Ford had an equitable interest, in this half of the lot, which could be sold upon the execution at law, and that the complainant acquired that right by virtue of the redemption and the sheriff’s deed.

The revised statutes having provided for a resulting trust in favor of creditors, whose debts are then existing, where the consideration for real property is paid by their debtor and the title is taken in the name of a third party in fraud of their rights, I am not prepared to say that a judgment for such a debt would not create a preferable lien in equity upon such real property, except as against a purchaser for a valuable consideration without notice, although such property cannot be sold upon execution on the judgment. (See Forth v. The Duke of Norfolk, 4 Mad. Rep. 504. Lynch v. The Utica Insurance Company, 18 Wend. Rep. 236.) But there can be no pretence in this case that there was a resulting trust, either in favor of the judgment creditors upon whose judgment the interest of Ford in this lot was sold, or in favor of the original complainant in this suit. For none of the debts embraced in either of these judgments appear to have been contracted until long after the title to the lot was vested in the defendant and in Ford, as tenants in common under the statute foreclosure. Besides, the statute makes the payment of the purchase money by the debtor and the taking of the title in the name of another, only presumptive evidence of fraud, even as to existing creditors. And at the time of the statute foreclosure and sale, in January, 1831, there was no inducement to vest the title to one half of this land in the defendant for the purpose of defrauding the creditors'of Ford. For that was more than three years before his failure. And no debts appear to have existed against him at that time, except those which were created by the purchase of this bond and mortgage and of the interest of the representatives of Brace ; for all of which debts the defendant was jointly holden.

No title whatever in this half of the lot, either legal or equitable, passed to the original complainant in this suit by virtue of the redemption and the deed of the sheriff. But he merely got—what W. Power professed to purchase at the sheriff’s sale—the undivided half of the lot which belonged to Ford the judgment debtor. And as to that half, I have no doubt he got the title divested of any claim in favor of the defendant, on account of the Smith note, whether the amount of that note was or was not included in the judgment given by Ford to his three brothers-in-law.

This would of itself be sufficient to sustain the decree of the vice chancellor dismissing the bill. For the complainant comes into this court for relief upon the sole ground that he acquired an equitable interest in the defendant’s half of the property by virtue of the sale and the sheriff’s deed ; and he has not framed his bill in such a manner as to be entitled to ask for relief upon any other ground. But I cannot dismiss the case without expressing my opinion also, that the complainant has failed in showing that it was ever the intention of the defendant and Ford that the bond and mortgage should be purchased for the purpose of acquiring the title to the whole lot for Ford exclusively, and that the defendant was a mere surety for him. The account of the transaction which the old gentleman gives in his answer is perfectly rational. And the fact which he states, that Ford agreed that if he did not pay for his half the defendant should be entitled to a claim upon that half for his indemnity, accounts for what is testified to by the witnesses, as to his only claim upon the land being for the payment of the note to Smith. The old gentleman was probably speaking of Ford’s half of the lot, upon which half he supposed he had a claim to secure the payment of the note to Smith, which he had signed with Ford to enable the latter to raise his half of one of the payments due to the original mortgagee. But the witnesses, not understanding the subject, no doubt understood him as speaking of the title to the whole lot.

The decree appealed from must be affirmed with costs.