text:
    Johnson and others vs. Everett and others.
    A decree which declares the rights of the parties merely, and directs an acrcount in conformity therewith, but reserves the consequential directions and the question of costs until the coming in of the master’s report, is an interlocutory decreo, from which an appeal must he brought within fifteen days after notice of the entering such decree.
    The degree is not final where the party in whose favor it is made cannot obtain any benefit therefrom without again setting the cause down for heaving, upon the equity reserved, on the coming in and' confirmation of the report of the master to whom a reference is made to ascertain ccrtais facts, necessary to be ascertained before the case can be finally disposed of by the court, or which the chancellor thinks proper to have ascertained be. fore he grants any relief to the complainant.
    But if the decree not only settles the rights of the parties, but also gives al?< the consequential directions, necessary to a final disposition of the cause, upon the mere sonfirmation of the report of Ihe master by a common order in the register’s office, it is a final decree ; and may Be enrolled at the expiration of thirty days, although the amount to which the complainant may he entitled under such decree remains to be ascertained, upon a reference to a master for that purpose.
    August 2.

    This was an application by the complainants to dismiss an appeal, by Evertt & Kingsley, two of the defendants* from a decree of the vice chancellor of the seventh circuit. The decree was entered on the 5th of January, 1842, and on the 28th of the same month a copy thereof was served on the solicitor for Everett & Kingsley ; whose appeal was not entered until" sometime in Hay thereafter. And the only question therefore was whether the decree was final as to the appellants; or was an interlocutory decree* from which they should have appealed within the fifteen days allowed by the statute for appealing from interlocutory orders and decrees of the vice chancellors. The complainants were judgment creditors of Seth W. Burke, and having exhausted their remedy at law by the return of executions upon their judgments unsatisfied, they filed their bill in this cause to reach the equitable interests and choses in action of the judgment debtor, and to set aside a certain conveyance to the appellants, Everett and Kingsley, as fraudulent and void against the complainants. The cause was heard upon pleadings and proofs as to the defendants Burke, Everett and Kingsley. The vice chancellor declared and decreed that the conveyance to Everett and Kingsley was fraudulent and void as against the complainants, and that the judgments of the complainants were valid and subsisting liens upon the lands mentioned in such conveyance, except as against bona fide purchasers of portions thereof from the appellants ; and that the complainants were entitled, out of such lands, and the proceeds, rents, and profits thereof, to be paid the amount due upon their judgments and the costs of the suit in this court. A reference was therefore directed to a master to report the amount due to the complainants upon their judgments: and to ascertain and report what parts or portions of the said lands had been sold, conveyed, charged, leased, or otherwise disposed of subsequent to the conveyance thus set aside as fraudulent, and to whom; and what sums of money had been received by the appellants, or either of them, on account of such lands, and what securities had been taken therefor, the amount due on any such securities, and from whom, &c.; and to take and state an account of the rents and profits which the appellants had received or might have received on account of such lands. The decree also revived the injunction, which had been dissolved upon the coming in of the answers, and directed the appointment of a receiver of the property of Burke, and of the rents and profits of the lands mentioned in the conveyance so declared void, and of all contracts, bonds, mortgages and other securities, things in action, money, or effects held, taken, or received by the defendants, or either of them, for or on account of the sale, conveyance, transfer, charge, lease, or other disposition of any other portions of such lands, &c. and required Burke, Everett and Kingsley to assign to the receiver such contracts, securities, &c. ; and reserving all other questions until the coming in and confirmation of the master’s report.

      G. F. Comstoclc, for the complainants.

      C. B. Sedgwick, for the appellants.
   The Chancellor.

Upon a careful examination of the provisions of the decree appealed from, I am satisfied it is an interlocutory decree merely ; which the appellants had no right to appeal from after the expiration of fifteen days from the time when a copy of such decree was served upon their solicitor. The vice chancellor does indeed decide the question as to the invalidity of the conveyance from the judgment debtor of the complainants, to Everett and Kingsley, the appellants; and as a consequence of such invalidity he declares the existence of the lien of the judgments upon the lands which still remain in the hands of the appellants unconveyed; and that the debts and the costs in this court ought to be paid out of the proceeds of the property thus fraudulently conveyed. But no decree for the payment, either of the amount of the judgments or of the costs of the suit, is made; neither is the receiver directed to pay either debt or costs out of the proceeds of the property which is to be transferred to him under the decree. The case, therefore, cannot be distinguished from that of Kane v. Whittick, (8 Wend. Rep. 219,) where the court for the correction of errors held a decree of the chancellor declaring the rights of the parties merely, and directing an account in conformity therewith, but reserving the consequential directions, and the question of costs, until the coming" in of the report, to be a mere interlocutory decree ; which must be appealed from within fifteen days, or that the right to appeal from the same was gone. A decree never can be said to be final where it is impossible for the party in whose favor the decision is made ever to obtain any benefit therefrom without again setting the cause down for hearing before the court, upon the equity reserved, upon the coming in and confirmation of the report of the master, to whom it is referred to ascertain certain facts which are absolutely necessary to be ascertained before the case is finally disposed of by the court; or which the chancellor thinks proper to have ascertained before he grants any relief whatever to the complainant. But if thedecree not only settles the rights of the parties, but gives all the consequential directions which will be necessary to a final disposition of the cause, upon the mere confirmation of the report of the master by a common order in the register’s office, it is a final decree and may be enrolled at the expiration of thirty days; although the amount to which the complainant may be entitled under such decree is still to be ascertained upon a reference to a master for that purpose. Thus, in the ordinary case of a bill for the foreclosure of a mortgage, if the decree merely decides or declares the rights of the complainant by virtue of his bend and mortgage, and refers it to a master to compute and ascertain the amount due to him, reserving all further questions and directions until the coming in and confirmation of the master’s report, it is an interlocutory decree merely; as the complainant cannot obtain the benefit of his suit until he brings the cause on to be heard again upon the equity reserved and for further directions as to a sale of the mortgaged premises and the payment of his debt and costs but of the proceeds of such sale. But if the decree, in addition to the reference to the master to compute the amount due upon the bond and mortgage, proceeds further and gives the usual directions in such cases, that upon the coming in and confirmation of the report of the master, the premises shall be sold, and that the master who makes such sale shall pay the amount so reported due, together with the interest and costs, out of the proceeds of such sale, and directing the mortgagor to pay the deficiency reported due upon such sale, the decree is final ; although the mortgagor may have the right to except to the master’s report of the amount due. For the questions arising upon the exceptions to the master’s report, in such a case, are merely incidental to the carrying of the final decree in the cause into full effect.

The appeal in the present case not having been brought within the time limited by the statute for appealing from a mere interlocutory decree, must be dismissed, with the usual costs of fifteen dollars allowed by the rule as the costs upon a special motion.


source: Caselaw Access Project

author: The Chancellor

license: Public Domain

text:
    Eldred vs. Hall.
    The fact that the defendant in a creditor’s bill has neglected to execute an assignment of his property, to the receiver, as directed by the order of the court, furnishes no grounds to the master for refusing to direct such defendant to deliver over his property to the receiver, and to decide what property the defendant has in his possession, or under his control, which ought to be delivered over pursuant to the order of the court appointing such receiver.
    August 4.
    This was an appeal from an order of the vice chancellor upon a review of the master’s decision on an ordinary reference upon a creditor’s bill. The defendant had neglected to execute an assignment of his property to the receiver, and the master for that reason refused to decide what property the defendant had in his possession or under his control, and to direct such property to be delivered to the receiver.

      S. F. Clarkson, for the complainant.

      H. F. Clark, for the defendant.
   The Chancellor

said, the neglect of the defendant to comply with one part of the order of the court furnished no grounds to the master for refusing to proceed in order to compel the defendant to comply with the other part of such order of the court, which directed the defendant to deliver over his property to the receiver upon oath before, the master.

Order appealed from reversed,"with costs.


author: The Chancellor.

text:
    Martin vs. Black.
    Where, in a suit upon a judgment creditor’s bill, a receiver of the defendant’s property was appointed in October, 1841, and the defendant afterwards assigned his property to such receiver; and at the time of the appointment of the receiver the defendant was the tenant of certain premises, and on the 1st November, 1841, a quarter’s rent became due ; and after-wards the receiver took possession of the furniture on the premises and removed it therefrom; and soon after such furniture was removed, and while it was on the carts in the street near the premises, the landlord attempted to distrain the same for rent in arrear, but was prevented from doing so by the prior possession of the receiver; Held, that as the property was actually removed from the premises before the landlord attempted to exercise his right to distrain his right of distress was gone; and that he had no right to follow the goods, as they were not the goods of the tenant at the time of their removal; but if the term had been assigned to the receiver, at the time of the assignment of the furniture of the judgment debtor, and the receiver had taken possession of the demised premises, or had otherwise elected to take the term under the assignment, that he would have taken it cum onere, and for the time being would have been the tenant of the premises, and the removal of the furniture would have been a removal of the goods of the tenant, within the meaning of the statute.
    The situation of a receiver is analogous to that of an executor, who cannot be charged as the assignee of a lease given to the testator, in case he waives the term ; although the estate of the testator may be liable for the rent in the due course of administration, if the landlord refuses to re-enter.
    At common law a distress for rent must be made upon the demised premises, and the right of the landlord to distrain terminates with the removal of the goods from the premises.
    The statute which authorizes the landlord to pursue goods removed from the demised premises, and to seize them within thirty days after their removal, is confined to goods which belonged to the tenant at the time of such removal.
    Where the goods of the tenant are turned out to a creditor, in payment of a debt, and are removed from the premises, the right of the landlord to seize such goods for rent in arrear is at an end, although the creditor has notice that there is rent in arrear.
    But where the goods are remaining on the demised premises at the time the landlord attempts to exercise his right to distrain, and his only impediment is the possession of the court, by its receiver, the court will order the receiver to pay the rent in arrear out of the proceeds of the property, or will allow the landlord to proceed with his distress notwithstanding the receivership.
    August 16.
    This was an appeal from a decision of the vice chancellor of the first circuit. A judgment creditor’s bill was filed in this cause, and a receiver of the defendant’s property was appointed in October, 1841, and the defendant afterwards assigned his property to such receiver. At the time of the appointment of the receiver, the defendant was tenant to the appellant Graham, and his furniture was in the house upon the demised premises. On the first of November, 1841, $89,29 was due to the appellant for rent, and on the first of February thereafter the further sum of $51,25 became due. On the 28th of January, the receiver took possession of the furniture on the premises, and removed it therefrom. Shortly after the property was removed, and while it was on the carts in the street near the premises, the appellant attempted to distrain for the rent which was then due, but was prevented from seizing the goods by the prior possession of the receiver. He afterwards presented a petition to the vice chancellor for an order that the receiver deliver the property taken from the demised premises to the officer charged with the execution of the distress warrant, or that he pay the rent due out of the proceeds of such property. The vice chancellor decided that inasmuch as the goods had been actually removed from the premises by the receiver-before the landlord had distrained upon them for his rent, his right to distrain was at an end ; the property removed not being the property of the tenant, but the property of the receiver, to whom it had been previously assigned. The petition was therefore denied, with costs.

      W. C. JYoyeSf for the appellant,

      J. Holmes, for the respondents.
   The Chancellor.

Where the goods are remaining on the demised premises at the time the landlord attempts to exercise his right to distrain, and the only impediment to the exercise of the right is the possession of the court, by its receiver, it appears to be the settled practice in England to order the receiver to pay the arrears of rent out of the proceeds of the property, or to permit the landlord to proceed with his distress notwithstanding the receivership. (Smith's Off. of Rec. 78. Dixon v. Smith, 1 Swans. 457.) In this case, however, the property was actually removed by the receiver before the landlord attempted to exercise his right to distrain. And as by the common law the distress must be made upon the demised premises, the right of the landlord terminated with the removal of the goods, unless he can bring his case within some statutory provision. In the case of bankruptcy, the landlord may dis-train the goods of the bankrupt upon the demised premises, even where the messenger is in the actual possession of the goods. (Ex parte Plummer, 1 Atk. Rep. 103.) But if the landlord suffers the goods to be removed from the premises, by the assignee of the bankrupt, previous to his exercising the right to distrain^ he loses his remedy by distress, and can only come in rateably with other creditors for the amount due for rent. ( Coote's Land. and Ten. 470. Henley's Bank. Law, 304.) So if the goods of the tenant are turned out to a creditor in payment of a debt, and removed from the premises, although the creditor has notice that there is rent in arrear the right of the landlord to seize such goods for the rent in arrear is at an end. (Bach v. Meats, 5 Maule & Sel. Rep. 200.) For the statute authorizing the landlord to pursue goods carried off the demised premises, and to seize them within thirty days, is in terms confined to goods which belonged to the tenant at the time of such removal. (2 R. S. 413, § 17. Frisbey v. Thayer, 25 Wend. Rep. 396. Postman v. Harrell, 6 Carr, & Payne, 225.) The property in the present case had been assigned to the receiver previous to the removal, and therefore was not the property of Black, the judgment debtor, at the time it was removed from the premises by the receiver.

If the demised premises themselves were in fact assigned to the receiver at the time of the assignment of the furniture of the judgment debtor, and the receiver had taken possession of the premises or had otherwise elected to take the term under the assignment, he would have taken it cum onere, and for the time being would have been the tenant of the premises j and a removal of the furniture would have been a removal of the goods of the tenant, within the meaning of the statute. (See Welch v. Myers, 4 Camp. Rep. 369.) But it does not appear by the papers before me that the term was in fact assigned. And even if the assignment was broad enough to embrace it I think the receiver would not become the tenant, so as to render him personally liable for the rent or for the performance of other covenants in the lease, without taking possession of the premises, or doing some other act signifying his election to accept the term as a part of the property of the judgment debtor. The situation of the receiver in this case is analogous to that of an executor ; who cannot be charged as the assignee of the lease if he waives the term, the income of which is not sufficient to pay the rent, although the estate of the testator may be liable for the rent in the due course of administration, if the landlord refuses to re-enter, (Went. Off. of Ex. 245. 2 Will. Ex. 1079. Per Macdonald, C. B. 3 Anst. Rep. 909.) Such, also, is the law in relation to the assignee of a bankrupt. If the assignee elects to waive the term, and neither enters upon the demised premises nor does any other act signifying his acceptance of the term as assignee, he is not liable for the rent ¿ and the lessor must come in as a general creditor of the bankrupt’s estate, or may sue the bankrupt for the rent subsequently accrued. (Bourdillon v. Dalton, 1 Peake’s N. P. C. 238. Wheeler v. Beamah, 3 Camp. Rep. 340. Copeland v. Stephens, 1 Barn. & Aid. Rep. 593.) But if the assignee enters upon the demised premises, or does any other act which is equivalent, to signify his assent to accept the term as the assignee of the lease, he will become the tenant of the premises and render himself liable for the rent. (Thomas v. Pemberton, 7 Taunt. 206. Clark v. Hume, 1 Ryan Moody’s Rep. 207. Hanson v. Stevenson, 1 Barn, & Ald. Rep. 303.)

In the present case the receiver had done no act indieating his acceptance of the term, even if it was embraced in the general assignment of the property and effects of the judgment debtor. The landlord therefore had no claim to follow the goods which belonged to the receiver, as such, and were not the goods of the tenant, at the time of their removal. It follows from this view of the case that the decision of the vice chancellor which is appealed from was right. And it must be affirmed, with costs.


text:
    Day and another vs. Potter.
    Where an original bill was filed by B. and W., against P. to obtain a eonveyance of real estate, and a replication was filed to the defendant’s answer to such bill, and after the filing of such replication, B. purchased the interest of his co-complainant in the subject matter of the suit and after-wards died ; and the heirs at law of B. thereupon filed a supplemental bill, in the nature of a bill of revivor and supplement, to continue the proceed, ings in their names ; to which bill the defendant put in an answer, without oath, denying the allegations in the supplemental bill; Held, that such heirs at law should file a replication to the defendant’s answer to the supplemental bill, and proceed to take proof of the matter put in issue by that answer, in connection with the, proofs of the matters in issue upon the original bill; leaving the question as to the right of the complainant to have the benefit of the original bill, and of the subject matter of the same, to be finally decided at the hearing, upon the proofs in the cause.

      Held also, that unless the facts put in issue by the answer to the supplement bill, were proved by the complainants in the usual way, such bill should be dismissed at the hearing.

      Held further, that if such facts were proved, as well as the matters put in issue upon the original bill, the new complainants would be entitled to the same relief that the complainants in the original bill would have been entitled to if they had both lived, and had continued to retain their interests in the subject matter of the litigation, as it was at the commencement of their suit.
    Where a simple bill of revivor is filed, or a supplemental bill in the nature of a bill of revivor, it seems, that an order to revive must be obtained before the hearing of the cause,
    A defendant in a bill of revivor cannot by answer prevent a revival of the suit, although he denies the right to revive.
    But although the defendant cannot by answer prevent an order for the revival of the suit, yet if the facts upon which the title to revive rests are denied by the answer, the complainant must establish the right to revive at the hearing, or he will eventually fail in the suit.

      August 16.
    This was an application by the complainants in a supplemental bill to revive and continue the proceedings in the original suit in their names, as complainants. The original bill was filed by R. G. Day and M. White against the defendant Potter to obtain a conveyance of real estate. Subsequent to the filing of that bill and after a replication had been filed to the defendant’s answer thereto, Day purchased out the interest of his co-complainant, in the subject matter of the suit, and afterwards died. The present complainants, who were the heirs at law of the decedent, thereupon filed their supplemental bill in this cause, in the nature of a bill of revivor and supplement, to continue the proceedings in their names as the substituted complainants who were now entitled to the whole subject matter of the litigation. To that bill the defendant put in an answer, without oath, in which he admitted the filing of the original bill against him by Day and White ; but by a general traverse in his answer he denied that any of the other allegations in the supplemental bill were true to his knowledge or belief.

      L. R. Marsh, for the complainants.

      O. L. Barbour, for the defendants.
   The Chancellor.

This is not one of the cases specially provided for by the 23d rule of this court. For as the facts stated in the supplemental bill upon which the claim of the present complainants to the whole subject matter of the litigation rests are denied and put in issue by the answer, proof of those facts must be made by the complainants, in the usual way, or their supplemental bill will be dismissed at the hearing. But in case those facts are proved, in addition to the matters put in issue by the replication to the answer in the original cause, these complainants will be entitled to the same relief that the complainants' in the original bill would have been entitled to if they fiad both lived, and had continued to retain their interest in the subject matter of the litigation as it was at the commencement of their suit. The proper course therefore is to file a replication to the answer to this supplemental bill and proceed to take proof of the matters put in issue by that answer, in connection with the proofs of the matters in issue upon the original bill; leaving the question as to the right of the complainants to have the benefit of the original bill and of the subject matter of the same to be finally decided at the hearing, upon the proofs in the cause.

The bill in this case, however, is a simple bill of revivor, so far as relates to the interest which Day, one of the original complainants, had in the subject matter of the litigation, at the time the original bill was filed, and is a supplemental bill in the nature of a bill of revivor only as to the interest which was formerly vested in White, and which had been assigned or conveyed to the deceased complainant previous to his death. In such a case it appears to be necessary to obtain an order to revive, previous to the hearing of the cause. (3 Dan. Ch. Pr. 217.) And the defendant cannot prevent a revival of the suit by answer merely, although he denies the right to revive. (Lewis v. Bridgman, 2 Sim. Rep. 465. Harris v. Pollard, 3 Peer Wms. Rep. 348.) But although the defendant cannot by answer prevent an order for the revival of the suit, yet if the facts upon which the title to revive rests are denied by the answer, the complainant, at the hearing, must establish the right to revive, or he must eventually fail in the suit. (Mitf. Pl. 78. 3 Danl. Ch. Pr. 218.)

An order must therefore be entered that the original suit be revived and continued in the names of the complainants in this supplemental bill, as the heirs at law of R. G. Day one of the complainants in the original suit and the alleged assignee of White the other complainant therein; but this order is to be without prejudice to the right of the defendant, at the hearing, to controvert any of the allegations in the supplemental bill which are not admitted by his answer to the same. And the complainants are to have the same time to file a replication to the defendant’s answer to their bill as they had at the time they gave notice of the present application.


text:
    Rathbone and others vs. Clark and others.
    In a foreclosure suit, where some of the defendants, who claim the equity of redemption in distinct parcels of the mortgaged premises, put in answers insisting that their portions of the premises should only be sold in case the residue is insufficient to pay the debt and costs, and other defendants suffer the bill to be taken as confessed, the court does not settle the order of sale without notice to all the parties interested: but will direct, in the decree, that the master sell the premises in the inverse order of alienation of the several parcels, and according to equity as between the several defendants.
    Where two tenants in common mortgage the land held in common, for a joint debt, and afterwards make partition of the equity of redemption between themselves, the portion of the premises set off to each should be sold for the payment of one half of the debt and costs, in the inverse older of the alienation of the different portions of each half of the premises,, subsequent to such partition.
    October 4.
    The bill in this cause was filed to foreclose a mortgage given by two tenants in common of the mortgaged premises for a joint debt. Subsequent to the giving of the mortgage the owners of the equity of redemption made partition thereof between themselves, and each afterwards aliened different portions of the premises set off to him in severalty upon the partition. Wilcox, one of the defendants, put in an answer admitting the rights of the complainant, but claiming to have the different portions of the premises sold in a particular manner to protect his equitable rights. And others of the defendants had suffered the bill to be taken as confessed.

      J. Rhoades, for the complainants.

      E. F. Smith, for the defendant Wilcox.
   The Chancellor

said, he could not upon the answer of one defendant, and without notice to other defendants, who owned different portions of the mortgaged premises, settle the order of sale by the master. That the proper decree in such a case, where the rights of the defendants were not set out in the bill and the complainants’ right to a foreclosure was not questioned, was to direct the master to sell the mortgaged premises in the inverse order of the alienation of the several parcels, and according to equity as between the several defendants; leaving the master to settle the order of sale upon the principles ©f equity. That where tenants in common mortgaged for a joint debt due from both, for the payment of which debt both were equally liable as between themselves, and after-wards made partition and aliened their several shares in different parcels, the share of the premises set off to each was chargeable primarily with one half of the debt and costs ; and should be sold to raise that half in the inverse ©rder of the alienation of the several portions thereof.

Decree accordingly.


text:
    Torrey & Gilbert vs. The Bank of Orleans & Clark.
    Where T., who was the owner of four lots of land and of a small farm of forty acres, had mortgaged the same to F. to secure the payment of $3000, in 8ve years, with annual interest, and afterwards sold two of the jots and the farm to G. as the trustee of B., who assumed the payment of $2000 of the mortgage as a part of the purchase money, and T. conveyed the two lots to G. by a deed, which stated the existence of the mortgage, and that $1747 of the mortgage money, and the interest thereon, was to be considered as the lien upon those two lots, and was to be paid by the grantee in sucii deed as it should become due; and the farm was conveyed in like manner to G., charged with $253 of the mortgage money and interest; and G. subsequently conveyed the farm to A. subject to tiie lien of $253 and interest, and took back a bond and mortgage for $1800 of the purchase money; and G- afterwards assigned the $1800 mortgage to the Bank of Orleans, and conveyed the bank the two lots by a deed which stated the amount or part of the mortgage to F. which was a charge upon those lots, and that it was to be paid by the bank as it should become due; Held, that the Bank of Orleans was legally and equitably bound to pay off and satisfy the part of the mortgage which was intended to be a charge upon the lots conveyed to the bank, so as to relieve the residue of the mortgaged premises from that part of the him thereon.
    And the Bank of Orleans having neglected to pay its portion of the mortgage, in consequence of which the mortgage was foreclosed; and the cashier of the bank, upon the master’s sale, having bid in one of the remaining lots of T., which lot was in equity discharged from the lien of the mortgage as between T. and the bank; Held, that the purchase of such lot upon the master’s sale was improper and inequitable, and must be set aside.
    It is a settled principle of equity, that a person who is placed in a situation of trust or confidence in reference to the subject of the sale cannot be a pur. chaser of the property on his own account. And this principle is not confined to a particular class of persons, such as guardians, trustees and solicitors.
    It is a rule of equity of universal application that no person can be permitted to purchase an interest in property where he has a duty to perform which is inconsistent with the character of purchaser.
    Where a bank is bound to pay off and discharge a mortgage, so as to relieve the property of a third person from a sale under a decree of foreclosure, the cashier who is the agent of the bank is not authorized to become tho purchaser of the property on his own account, and thereby to render the bank liable to indemnify such person for the loss of bis property.
    October 4.
    This was an appeal from a decree of the vice chancellor of the eighth circuit. Torrey, one of the complainants, being the owner of four lots of land, numbered 12, 169, 170 and 182, containing from 93 to 100 acres each, and 40 acres of another lot known as Torrey’s Homestead farm, mortgaged the whole to the Farmers’ Loan and Trust Company in 1835, to secure the payment of $3000, in December, 1840, with annual interest j the whole to become due and payable if the interest should be in arrear for thirty days after it was due. In June, 1838, Torrey agreed to sell to Burnet lots No. 169 and 170, and the homestead farm, for $5904 ; from which was to be deducted $2000 of the mortgage and interest thereon from the 1st of November, 1837, which portion of the mortgage Burnet was to pay, and the same was to be a lien upon the lands thus sold to him. Pursuant to that agreement Torrey and his wife conveyed to A. Gardiner, at the request and for the benefit of Burnet, lots No. 169 and 170, by a deed which stated the existence of the mortgage on the whole of the lots, and that $1747 of the mortgage money with the interest thereon was to be considered as a lien on these two lots and was to be paid by Gardiner, the grantee thereof, to the Farmers’ Loan and Trust Company as it should become due, with the interest thereon. And at the same time Torrey and wife, at the request and for the benefit of Burnet, conveyed to Gardiner the homestead farm, the deed for which contained a similar recital of the mortgage, and that $253 of the mortgage money and interest thereon was to be considered as a lien on that farm, and was to be paid by Gardiner the grantee, in the same manner. In July, 1838, Torrey and wife, by an arrangement with a person with whom he had previously contracted to sell the same, conveyed so much of lot No. 12 as was covered by the mortgage to the Farmers’ Loan and Trust Company, to the Bank of Monroe, by a deed which recited the existence of the mortgage, and that $1000 thereof and interest was to be considered as a lien on the premises conveyed by that deed and was to be paid by the grantee the Bank of Monroe. Gardiner afterwards conveyed the homestead farm to H. Allen, with a similar provision in the deed as to the $253, which was, by the deed from Torrey, to be a lien upon that lot; and Allen gave back to Gardiner a mortgage on the premises thus conveyed, to secure $1800, a part of the purchase money thereof.
    Burnet being largely indebted to the Bank of Orleans, he made an arrangement with the bank, in August, 1838, by which he procured to be transferred to such bank, in security for such debt and in discharge of his personal liability therefor, certain bonds and mortgages, land contracts and lands, and among others the mortgage of Allen on the homestead, and the two lots No. 169 and 170 conveyed by Torrey to Gardiner. In estimating the value of the Allen mortgage and the two lots conveyed by Gardiner, the amount of the previous incumbrance thereon by reason of the mortgage to the Farmers’ Loan and Trust Company, was estimated at $2000, and it was understood by the officers of the bank that the other third of the mortgage had been assumed by the purchasers of lot No. 12. The deed from Gardiner to the bank for the two lots No. 169 and 170 recited that it was expressly understood between the parties to that conveyance “ that these two lots, together with the other lands, (describing them) are subject to the $3000 mortgage and interest to be paid annually, the proportion of which sum of $3000 and interest to be paid by the said party of the second part, was estimated, on the 7tb day of June, 1838, at about $1747, which sum is a lien on the above bargained premises, and to be paid by the parties of the second part as the same shall become due.”

    In March, 1839, the annual interest which became due on the first of November, 1838, not having been paid, the Farmers’ Loan and Trust Company filed a bill in this court for the foreclosure of their mortgage ; in which bill Torrey and wife, Gardiner, Allen and wife, the Bank of Monroe, and the Bank of Orleans and divers others were made defendants. In January, 1840, a decree was made in that cause for the foreclosure and sale of the mortgaged premises; and directing the master to sell the same in such order as might be in accordance with the equitable rights and interests- of the several parties, and that in case of a deficiency in the proceeds of the sale of any parcel of said premises which as between any of the said-defendants was liable in equity in the first place for the payment of the said mortgage debt and costs to pay the same, that any of the defendants should be at liberty to apply on the foot of that decree for such relief against any party liable to pay the same as they might be advised was necessary.
    During the pendency of that suit and about a month before the decree therein, Torrey mortgaged to Gilbert, one of the complainants in this cause, lot No. 182 to secure the payment of $2300, in three yearly payments with interest thereon annually. Before the decree in the foreclosure suit, the cashier of the Bank of Monroe suggested to Clark, one of the defendants in this suit, who was the cashier of the Bank of Orleans, the propriety of their paying off the mortgage and stopping further costs on the foreclosure ¡ but Clark preferred that a sale should be had under a decree in that cause to perfect the title of the Bank of Orleans to its three lots. And it was finally arranged, that upon the sale of the property by the master, Clark should attend the sale, and either bid off the lands upon which both had their claims together, and conveying lot No. 12 to the Bank of Monroe upon the payment of one third of the amount due on the mortgage and one half of the costs, or should bid in that lot for the Bank of Monroe at that amount. He accordingly attended the sale, as the cashier and agent of the Bank of Orleans, and bid off lot No. 12 in the name of the Bank of Monroe, at the price fixed upon by the arrangement. And he then had lots No. 169 and 170 and the homestead farm put up in one parcel and bid them off in the name of the Bank of Orleans, for $1402,13 only; leaving a balance due upon that part of the decree which was equitably chargeable upon those lots of $1074,03. The master thereupon put up the lot of Torrey, No. 182, on which Gilbert had the second mortgage, and it was bid in by Clark in his own name at the last mentioned sum ; no other person than Clark being present as a bidder at the sale.
    The complainants by their bill in this cause, which stated the above facts substantially and alleged that they were ignorant whether lot No. 182 had been conveyed to the Bank of Orleans or to Clark in his own right, prayed that the defendants might be decreed to reconvey that lot to the complainant Torrey, subject to the lien of Gilbert thereon by virtue of his mortgage; and for such further or other relief as they might be equitably entitled to upon the case made by their bill. But the vice chancellor decided that the purchase by Clark of lot No. 182, whether he bid in the same for himself or for the Bank of Orleans, was a valid purchase, and that the purchaser was entitled to hold it as against the complatnants; and that the bank was only bound to pay to them the amount of the deficiency in the sale of the previous lots, with the interest thereon from the time of the sale. He therefore decreed a dismissal of the bill as to the defendant Clark, with costs j and directed the Bank of Orleans to pay to Gilbert that amount, and to pay the complainants their costs of the suit, to be taxed. From that decree the complainants appealed to the chancellor; and the Bank of Orleans appealed from so much thereof as was adverse to that institution.

      J. W. Gilbert, for the complainants.
    The acceptance by Gardiner of the deed from Torrey, with the clause therein contained in respect to the payment of the prior mortgage, created an express agreement on his part to pay off the mortgage and indemnify Torrey. And Torrey retained an equitable lien for the performance of such agreement. (2 Co. Litt. by Thomas, 187. 4 Cruise Dig. 393. Cr. Tac. 240. 2 Salk. 450. 9 Pick. Rep. 486. 13 Idem, 134. 18 Wend. Rep. 618. 6 Cowen, 448. 5 Bro. P. C. 299. 5 Sim. Rep. 535. 7 Ves. 336. 5 Barn. & Cress. 589. 7 Paige’s Rep. 594.)
    The Bank of Orleans purchased with notice, and is therefore bound to the same extent and in the same maimer as Gardiner. (Lewin on Trusts, 206. 2 Story’s Eq. 242,480. 7 Paige’s Rep. 427,594. Sug. Vend, and Purch. 268,269. Coote on Mort. 18. 1 Paige’s Rep. 21. 1 John. Ch. Rep. 308. 6 Idem, 402. 13 Pick. Rep. 138. Powell on Mort. 106, 352.) And the obligation to pay off the prior mortgage may be enforced directly against the bank. For Gardiner took the land subject to a trust, and upon the conveyance from him the trust was raised de novo, by operation of law, as against the bank, Gardiner’s grantee. (Lewin on Trusts, 205,209. 6 John. Ch. Rep. 402.) And equity will make that party liable immediately who is ultimately liable at law. (13 Pick. Rep. 138. 7 Paige’s Rep. 421. 5 Cranch, 522. 7 Idem, 69, 97. 2 Story’s Eq. 488.)

      The complainants had not an adequate remedy at law. The mortgage to Gilbert operated as an equitable assignment of Torrey’s claim upon his grantees, which equity only could adequately protect. But even if the complainants had a remedy at law, this court has concurrent jurisdiction.
    Moreover the defendants have voluntarily submitted to the jurisdiction, and the objection cannot be taken on the hearing. (2 Paige’s Rep. 509.) Torrey’s lien extended as well to the forty acre tract sold to Allen, as to the other land; and the bank having purchased that lot with notice and in violation of the trust, their claim to that lot must be placed on the same footing as their claim to the other lots.
    The bank having permitted lot 182 to be sold for a part of the money, and upon the original mortgage, which they were bound to pay off, it was a fraud upon Torrey, and the complainants are entitled to a decree against the bank for the value of lot 182, or to be subrogated to the place of the Trust Company for this purpose, the money to be distributed as follows : 1. To pay Gilbert his mortgage debt and interest ; and 2. To pay Torrey the residue.
    Clark is not entitled to costs, because the circumstances under which he purchased had an aspect of gross bad faith, and the complainants were justified in calling upon him to answer. The foreclosure of the trust company mortgage, and the purchase by the bank under that foreclosure, does not affect the rights of the complainants •, because the bank had no right to suffer a foreclosure. And Torrey’s lien was an equitable mortgage, and the bank was his mortgagee. If a party is a mortgagor to two mortgages, and on a foreclosure of the elder mortgage he becomes the purchaser, the lien of the last mortgage is preserved the same as if he had paid off the elder mortgage without foreclosure.

      H. R. Selden, for the defendants.
    The Bank of Orleans was not bound to pay any part of the Trust Company mortgage unless it elected so to do. The provision in the deed operates only as a notice to the bank that the lands are subject to the incumbrance of the $3000 mortgage, and that the bank must clear the land from the mortgage or lose it. It has no other binding force upon the bank. The bank did not execute the deed; and it amounts to neither a covenant nor a contract of any kind as against the bank. True it says, u To be paid to the Farmer’s Loan and Trust Company as the same shall become due.” What is the penalty if the party of the second part fails to pay 1 Merely that he must lose the land. It will be observed that the terms of this deed are the language of the grantor, and the effect thereof, taken as a whole, is this : “ I convey to you this land ; it is subject to an incumbrance of $2000, to be paid by you, and if you fail to pay, you lose the land.” Such is what the complainants’ own witness, Judge Gardiner, says was the understanding of the parties at the time of the conveyance. But in no possible view could the bank be held to the payment of that part of the mortgage charged on. the forty acres; and that not being paid, they would be justified in suffering a foreclosure, even if bound to pay the $1747.
    If the bank can be considered as bound to pay any part of the $3000 mortgage, it is not bound to the complainants, or to either of them, in law or equity. Admitting that the bank, by accepting the deed, contracted to pay a portion of the $3000 mortgage, with whom was the contract made 1 Not with Torrey or Gilbert certainly. It can hardly be said that it was made with Gardiner. Could he sue at law for the non-performance 1 Clearly not •, for it is no agreement to pay him any thing, and he is not entitled to the money. Perhaps treating it as a contract on the part of the bank, the Farmers’ Loan and Trust Company could maintain an action if they were not paid; but they had received their money. Giving to this clause in the deed the full force of a contract or covenant on the part of the bank to pay this money, it has been fully performed. The bank has paid fully, and literally, all they agreed to pay. This provision of the deed is the language of the grantor, and by the rules of construction is to be construed most strongly against himself. The other party, if bound at all, which we deny, certainly cannot be bound beyond the letter of the covenant to pay the amount of the debt, so that it be cancelled; availing himself to do so of the equitable claim on the. other lands covered by the mortgage to aid him in doing it. If the party wanted to have these lands discharged, and the debt paid besides, he should have so expressed it in his deed.
    Both these parties are foreclosed by the decree in the foreclosure suit. The one as a party, the other as a purchaser pendente lite. If Torrey or Gilbert had any equitable defence to the suit, or reason why lot No. 182 should be exempted from sale, they should have appeared and interposed their claim. The decree expressly cuts off all their equity of redemption and claim, and any of the parties by the terms of the decree had a right to purchase discharged of all such equity or claim. The bank and Clark did so purchase; the sale was in all respects fair and regular. They are in under the title of the mortgagee, which over-reaches all other claims, and we say unhesitatingly they cannot be disturbed without opening their decree. But if the complainants have any remedy, it is at law, and not in this court. It seems to me very clear that the complainants have no claim whatever, except upon the ground that the bank by accepting the deed, with the provision in relation to the payment of part of the $3000, in effect promised to make that payment. Now supposing this to be the fact, what is it but a mere valid promise to pay a specific sum of money, which the party has neglected to pay 1 It is the most usual and ordinary ground of all suits at law. If the complainants have suffered damage beyond the amount of the money and interest it is their own fault, and does not furnish a ground for equitable relief. The result would have been the same if the bank had, without buying the lands, given Torrey a bond to pay him $2000 in a given time—failing in which the loan company foreclosed, and he lost all his land in consequence of inability to pay created by default of the bank. This certainly would give one ground for relief in equity instead of a resort to law.
    Clark’s title to lot 182 is absolute and cannot be impeached by the complainants, even if Torrey has held the bond of the bank to pay off the mortgage, and Clark had full value of it; and that the bank wholly refused to do it, it could not in any way affect his title. He comes in under the mortgage and with all the rights of the mortgagee, the equity of redemption being foreclosed by the decree and sale. The refusal of the bank to pay, if bound to do so, did not render the sale unlawful. The loan company had aright to sell, and indeed could get their money in no other way; nor could the refusal of the bank with knowledge of it in Clark render it improper or illegal in him to bid on the sale, or render a sale to himself less valid than it would have been to any other man; and certainly the loan company had power to make a valid sale. The remedy of the complainants, if any, must be against the bank alone. This shows that upon no grounds could the complainants have a remedy now, after decree, for any thing but the money and interest agreed to be paid ; and if so, that remedy is at law and not here. It is not our fault if Torrey did not make the provisions of his deed as he intended.
    If there is any remedy for the complainants, it is against Gardiner alone. But in case the bank is liable, it is only liable to pay the difference between the amount bid and the amount of the $2000 which it was to see paid.
   The Chancellor.

The vice chancellor was clearly right in this case in supposing that the Bank of Orleans, as between that institution and the complainant Torrey, or any persons claiming an interest in lot No. 182, under him, was bound to pay off and satisfy the mortgage to the extent of $1747 and interest, and a proportionate amount of the costs. And the Bank of Monroe was in the same manner bound in equity to pay off the other $>1000 and interest and one third of the costs. The deeds themselves which are in evidence show this, independent of any parol testimony, except so far as such testimony might be necessary to prove the fact of the actual acceptance of such deeds by the grantees therein respectively. A recital of a fact in a deed is, as against the grantee in such deed and all persons claiming under him through that deed, evidence of the fact recited therein ; so as to save the necessity of further proof thereof by the grantor or those who claim under him. The acceptance of the deed operates as an estoppel upon the grantee and those who claim under him as against the grantor and his assigns or representatives. (Cov. Read. Ed. of Coke, 352, (a). Carver v. Jackson, 4 Peter’s Rep. 83, 88.) The late Chancellor Jones, in delivering the opinion of the court for the correction of errors in the case of Sinclair v. Jackson, in December 1826, recognizes this principle, that a man who admits the existence of a fact, or deed, either by reciting it in an instrument executed by him, or by acting under such instrument, shall not be received to deny its existence. (8 Cow. Rep. 586.) And in a previous case in the same court, it was held that the recital in a will, of a previous conveyance of a part of the testator’s estate, was conclusive evidence of the fact of such conveyance, as against a person claiming under the attainder of one of the devisees of another part of the estate; which devisee was also an heir at law of the testator. (Denn v. Cornell) 3 John. Ca. 174.)

In the case under consideration the Bank of Orleans derived its title to lots No. 169 and 170, and to the mortgage of Allen on the homestead lot, through and under the deeds of those lots to Gardiner ; which deeds recited the existence of the mortgage to the Farmers’ Loan and Trust Company and the amounts that by the arrangement of the grantor and grantee were to be considered as liens on those lots ; and which amounts, as the recitals showed, Gardiner the grantee agreed to pay when they should become due, with the interest thereon. No part of the principal or interest of these two thousand dollars of the bond and mortgage, or of the $1000 which was afterwards assumed by the Bank of Monroe, was then due ; as the interest was payable annually and had been paid up to the 1st of November, 1837. By the acceptance of those deeds, therefore, the homestead farm and the two other lots were not only ehargeble with their respective portions of the $2000 and interest apportioned thereon, and a proportionate share of the costs which might be made by a foreclosure of the mortgage if the interest should not be paid when it became due, but the grantee himself was by the acceptance of such deeds, both legally and equitably bound to pay those portions of the charge ; so as fully to indemnify Torrey the grantor, and his remaining lots against the consequences of the non-payment, in case the premises conveyed by such deeds should not, upon the foreclosure of the mortgage, bring sufficient to pay that portion of the debt, and the costs. By the subsequent conveyance of lot No. 12 to the Bank of Monroe, by a deed containing a similar recital, that institution assumed a similar responsibility to the grantor in reference to the residue of that mortgage and his remaining lot, No. 182. Had Gardiner therefore remained the owner of the lands granted to him and if, instead of paying off his part of the mortgage as he was both legally and equitably bound to do, under the agreement recited in the deeds for his three lots, he had suffered the mortgage to be foreclosed for the nonpayment of his part of the incumbrance and had bid in lot No. 182 upon the sale under the decree, it would unquestionably have been the duty of this court, under such a reservation óf the equitable rights of the defendants in the foreclosure suit as was contained in that decree of foreclosure, to have compelled Gardiner to relinquish such purchase and to release that lot to Torrey, or those claiming under him. Arid if the lot had been purchased by a stranger, who had no duty to perform as the agent of Gardiner upon the sale and was under no obligation to protect the equitable rights of the owner of that lot, Gardiner would, in equity, have been bound to indemnify Torrey for the loss he had sustained by such sale.

Such being the legal and equitable liabilities of Gardiner at the time he conveyed the two lots to the Bank of Orleans, he took the precaution to insert, in his deed to that institution, a corresponding recital, which is conclusive evidence against the grantees therein who accepted that deed, of the agreement that such grantee was to pay off and discharge the amount charged upon those two lots; so as to relieve Gardiner from the responsibility which he had assumed by the agreement recited in the deed from Torrey. Whether Torrey could have sued the Bank of Orleans in an action at law, founded upon its agreement to pay as recited in the deed from Gardiner, according to the principle of the cases referred to by Chancellor Kent in Cumberland v. Codrington, (3 John. Ch. Rep. 254,) is perhaps doubtful. For it is evident that Gardiner himself had an interest in that agreement, as well as Torrey, to indemnify him against the responsibility he had assumed by the recital in the previous deed to himself. There is no doubt, horvever, that a court of equity, to prevent circuity of action as well as to protect the rights of Torrey, for which purpose that agreement was more especially intended, is bound to givev him the benefit thereof in the same manner as if it had been recited in a conveyance directly from him to the bank for these two lots. And if the bank itself had become the purchaser of lot No. 182 at the master’s sale, I think there could not have been any reason to doubt that in equity that institution could not hold the lot as against these complainants. The provision in the decree of foreclosure that any of the parties to the suit might become purchasers at the master’s sale was not intended to permit one defendant to bid in a portion of the premises belonging to another, and to hold the same as against the latter contrary to equity ; but it was inserted merely to avoid the effect of a supposed technical rule that a party to the suit cannot be a purchaser under the decree therein, without special permission.

The question therefore arises whether the defendant Clark is to be considered as a mere stranger to the other parties, so as to entlitle him to hold this lot No. 182 which he bid off at the master’s sale, in his own name. Previous to considering that question, however, it may be proper to inquire what were the equitable rights of the Bank of Orleans and the complainants as between themselves, at the time of the sale under the decree, in reference to the part of the mortgage money and interest and costs chargeable upon the homestead lot, by the deed to Gardiner and by the subsequent conveyance of that lot to Allen. As to that lot it will be recollected that upon the conveyance to Allen, he gave back a bond and mortgage to Gardiner for $1800, to secure that portion of the purchase money; which bond and mortgage were assigned by Gardiner to the Bank of Orleans at the same time that he conveyed the other two lots to that institution. It does not appear that any recital was contained in that assignment, of an agreement on the part of the bank to pay off and satisfy the $253 and interest charged upon that part of the premises which was embraced in the mortgage to the Farmers’ Loan and Trust Company. Neither is there, any parol evidence of such an agreement at the time of the assignment; though it was well understood that the bank was to take the mortgage of Allen upon the homestead farm, subject to the amount of the original mortgage, which, as betwmen Torrey and Gardiner and Allen, was equitably chargeable thereon. Had the bank, therefore, paid up the amount of the debt and interest and costs which was properly chargeable upon lots No. 169 and 170, or if Clark had bid up those lots to that amount, and the homestead lot had been sold separately and had produced less than the amount charged thereon, I am not prepared to say the complainants w'ould have had any equitable claim against either of these defendants for the deficiency w'hich in that case would have been chargeable upon lot No. 182. It appears, however, that the agent of the bank suffered all three of the lots in which that institution had an interest to be put up together, and bid in the whole in one parcel for an amount far less than the sum the bank was equitably bound to pay under the agreement contained in the recital of the deed from Gardiner for the other two lots. The homestead lot, as appears by the mortgage thereof, wras sold to Allen for $1800 in addition to the amount of the original mortgage charged thereon, and there is no room to doubt that the actual value of that lot was much more than the $253 and interest, and a rateable proportion of the costs of foreclosure. The fact that the Bank of Orleans was not liable to pay that amount if the homestead lot had been sold separately and produced less, cannot therefore alter the equities between these parties under the circumstances of this case as they now exist.

It is a settled principle of equity that no person who is placed in a situation of a trust or confidence in reference to the subject of the sale can be a purchaser of the property on his own account. And in the recent case of Green-law v. King, decided in the court of chancery, in England, in January, 1841, (5 Land. Jur. 18,) Lord Cottenham held that the principle was not confined to a particular class of persons, such a sguardians, trustees, or solicitors; but -was a rule of universal application to all persons coming within its principle, which is that no party can be permitted to purchase an interest where he has a duty to perform that is inconsistent with the character of purchaser. (See Hawley v. Cramer, 4 Cowen’s Rep. 736, and the cases there referred to.) What was the duty then of the defendant ■Clark in reference to this sale, standing as he did in the situation of cashier and agent of the Bank of Orleans and bound to protect its rights on the sale by the master 1 That bank, by the agreement recited in the deed from Gardiner, was bound to pay off and discharge so much of the $1747, with interest and costs chargeable on the two lots conveyed to it as should not be raised by the sale of those lots by the master, and to indemnify not only Gardiner but Torrey and those claiming under him, from the consequences of a neglect to do so. Bidding in these two lots and the homestead farm for the bank, and purchasing lot No. 182 in his own name for the deficiency which the bank was bound to pay, would thereforé leave the bank equitably liable to the complainants for the value of the last mentioned lot j which amount would be lost by the neglect of the cashier to perform the engagement of that institution. Whether lot No. 182 was or was not worth more than than the amount of the agent’s bid is a matter of fact which is never inquired into in such cases ; the general interests of justice requiring that purchases made by persons holding a fiduciary situation in relation to the sale, should be set aside in all cases, if an application is made within a reasonable time. For as Lord Eldon very correctly observed in the case of James, (8 Ves. 345,) no court is equal to the ascertainment of the truth in much the greater number of cases. Clark cannot then be permitted to hold this lot as against the complainants and thus leave the bank to make good the loss to them. He must, therefore, relinquish it to the complainants, and look to the bank for payment of the amount of his bid if he did not in fact purchase it for the bank itself.

The decree of the vice chancellor must be reversed with costs to be paid by the defendants to the complainants.. And a decree must be entered, declaring that the Bank of Orleans was in equity bound to bid the two lots conveyed to them by Gardiner up to the amount of the $1745 and interest, mentioned in the recital of the deed from Gardinerto the bank, and a proportionate share of the costs, or to pay off and discharge that amount for the benefit of Torrey and his mortgagee ; and that the purchase of lot No. 182 by Clark, whether on his own account or for the benefit of the bank, was inequitable as against the complainants, and-that the same be set aside. And he and the bank must release and quit-claim to Torrey that lot, subject to the lien of Gilbert thereon by virtue of his mortgage, with covenants against any acts of theirs or either of them, whereby the legal title to the same, acquired under the master’s deed, has been in any way impaired or incumbered ; and if they, or either of them, are in possession of that lot or of any part thereof, the same must be delivered up to the complainants. And the defendants must also pay to the complainants their costs of this suit to be taxed.

If the defendants, or either of them, have taken possession of the premises or any part thereof, under the master’s deed, the complainants are to be at liberty to apply to the chancellor, upon the foot of this decree, for a reference to compute and ascertain the value of the rents and profits of the premises ; and for the payment of the same by the party who is justly chargeable therewith, upon the coming in and confirmation of the report. The defendant Clark is also to be at liberty to apply for a further decree as against his co-defendant the Bank of Orleans, for the payment to him of the amount of his bid upon this lot at the master’s sale, with the interest thereon, if it has not already been paid to him out of the funds of the bank. And the question as to the costs of the reference, and all questions of costs as between the defendants themselves, and all further questions and directions are in the mean time to he reserved.


author: WillaRd, Circuit Judge

text:
    Saratoga Oyer and Terminer,
    December 1839.
    Before Willard, Circuit Judge, and the County Judges.
    The People vs. Gerret Swan.
    The finder of property, who knows the owner, or has reason to believe who he is, is hound to restore it, and is guilty of larceny, if he fraudulently converts it to his own use.
    The prisoner was indicted for grand larceny, in feloniously stealing a pocket book, containing one hundred dollars in money, the property of Alonzo Howland, on the first day of May 1839, at Stillwater.
    It appeared in evidence that the prosecutor, about five o’clock P. M. of the first of May, went into a necessary, in the rear of Mr. Lawrence’s store, in Stillwater, on a call of nature, and laid his pocket book, containing $ 100, on the bench, and came out without it. In ten or fifteen minutes afterwards, he missed it, and went back after it, and it was gone. The necessary was on premises owned by the prosecutor, and was used by Mr. Elmore, a'shoemaker, who occupied a shop on the same premises, and his hands. The prisoner was a journeyman of Mr. Elmore, and absconded the following night; was pursued to Albany and found with the pocket book in his possession, and a part of the money. A portion of the money he had paid out for a suit of clothes, which was also given up. The pocket book contained receipts given to the prosecutor, in which his name was inserted at length. It was proved that the prisoner could read; that he told the officer, when he was arrested, that when he first found it he supposed it belonged to Mr. Lawrence, but oh opening it, and finding the receipts, he knew it belonged to the prosecutor. He said if he got another pocket book he would know what to do with it; that the officer would not get it so easily. The officer had to search him before it was found.

      Bloore, for the prisoner,
    insisted that the pocket book had been lost, and that the prisoner was the bona fide finder of it, and could not be convicted of larceny, by a fraudulent conversion. He cited The People v. Anderson, 14 J. R. 294

      Ellis (Dist. Att’y)
    cited The People v. McGowan, 17 Wend. 460.
   WillaRd, Circuit Judge

(after recapitulating the evidence and defining the crime of grand larceny), observed: It has been said that if a man lose goods, and another find them, and not knowing the owner converts them to his own use, it is no larceny. This rule supposes that the finder acts bona fide, is ignorant of the owner, and may, therefore, have a warrantable ground to suppose that the goods will never be claimed, and the owner will never be discovered. Such seems to have been the view of the supreme court in the case of The People v. Anderson, cited by the prisoner’s counsel. The particulars of that case are not detailed, but it is assumed that the owner had lost the goods, and that the defendant was .an honest finder.

The law,'however, clearly holds a prisoner guilty criminally who knowing the owner, converts the property to his own use. It is the duty of the finder to restore property which he has found to the rightful owner, and if there, are marks upon it, by which the owner can be ascertained, or if he has reasonable ground to believe who the owner is, he will be guilty of larceny if he convert it to his own use.

In the present case, the pocket book and money can ¡not be said to have been lost, in the’ strict technical sense of the term The prosecutor left it by accident, for a few minutes, in an unusual place, but knew where it was left. If the prisoner, when he discovered it, had no reasonable ground to believe that it had been .abandoned by its owner, or that its owner -never would be found — if he knew whose property it was, before he converted it to -his own use 7-7- if he took no means ,to restore it to its owner, but on the contrary fled and endeavored to conceal it, and appropriated it to his own use, the jury will be warranted in finding him guilty.

The jury found the prisoner guilty and he was sentenced to the state prison for three years and six months.