text:
      Tripp vs. Vincent and others.
    Upon a bill to foreclose a mortgage against two defendants who as copartners have a joint judgment against the mortgagor which is a lien upon the mortgaged premises, one of such defendants has no right to admit service of the subpeena upon liis co defendant, upon whom it has not been served. And the latter, upon showing that he lias a meritorious defence to the suit, is entitled to have the default against him founded upon such admissions set aside, if ho applies immediately after he is informed of the irregularity.
    The court of chancery has power to open a default and let in a defence to a suit upon the merits after a final decree therein has been entered and enrolled.
    An appeal lies to the chancellor from an order of a vice chancellor made subsequent to a final decree in a cause.
    March 17.
    This was an appeal by Woodburn and Dey Ermond, two of the defendants, from a decision of the vice chancellor of the seventh circuit, denying their application to open a decree which had been taken against them by default, and to permit them to put in an answer and defend the suit. The bill was filed, to foreclose a mortgage given to the complainant by D. H. Birdsall, and the appellants were made parties to the suit as judgment creditors of Birdsall having a subsequent lien upon the mortgaged premises by virtue of their judgment. The subpoena was served upon Woodburn only, and he gave an admission of service to which he also signed the name of Dey Ermond, the other plaintiif in the judgment, but without authority from him. And Woodburn supposing the mortgage to be justly due, after consulting with his counsel, and being informed that it was not necessary for him to appear and answer in the suit, paid no attention to it until he afterwards ascertained, by the examination of the complainant as a witness in another suit, that his mortgage was fraudulent; or at least but a part of it was due, the residue being without consideration. The complainant’s solicitor supposing that the subpcena had been served on Dey Ermond, and that he had signed the admission of service, entered an order to take the bill as confessed, against both the appellants ; and obtained the usual decree for a foreclosure for the whole amount for which the mortgage was given. And the complainant was proceeding to sell the mortgaged premises under the decree, when he received notice of the appellant’s application ; the decree having been enrolled a few days before. The vice chancellor received the complainant’s affidavit to contradict the appellants’ affidavit of merits, and denied their application with costs.

      M. T. Reynolds & S. M. Woodruff, for the appellants.

      Victory Birdseye, for the respondent.
   The Chancellor.

The proceedings to take the bill as confessed against Dey Ermond were clearly irregular, as Woodburn was not authorized to admit service of the subpoena in his name. But if there had been no affidavit of merits in the case, I could not say that the vice chancellor, after decree, was absolutely bound to set aside the proceedings for an irregularity merely technical. It cannot properly be said, however, that there was any waiver of the irregularity on the part of Dey Ermond; as there is nothing in the papers to show that he had any knowledge of this suit, or of the admission of service made in his name, until the papers were made out for this application. Neither is it necessary in this case to inquire what would be the effect of the foreclosure of a mortgage against one of the plaintiffs in a joint judgment where the other was not made a party to the suit; as I am satisfied both of the appellants should have been let in to defend this suit upon the merits.

The affidavits on the part ofWoodburn and Dey Ermond are sufficient to show prima facie that this mortgage was given for the purpose of defrauding the creditors of the mortgagor ; or at least, that it ought not to be permitted to stand for any more than was actually due at the time it was given, and what was afterwards paid in good faith upon the $800 note. And even if it was competent to receive the complainant’s affidavit to contradict the affidavit of merits on the other side, upon such an application, he does not pretend he has ever paid a full consideration for the whole amount specified in the mortgage. If he was honest in the whole transaction, and had no suspicion that Birdsall was embarrassed and was endeavoring to place his property beyond the reach of his creditors, yet no one can doubt, from what appears in these papers, that such was the intention of Birdsall himself. And the complainant cannot therefore be considered as the bona fide mortgagee, without notice of the fraudulent intent of the mortgagor, for any thing more than the actual consideration paid by him, with the interest thereon. Upon his own showing, then, he has gotten a decree for about $100 more than is equitably due upon the mortgage as against the creditors of Birdsall, together with the interest on the whole $800 note from February to May. It is not usual, however, upon applications of this kind, to receive the affidavit of the adverse party to contradict an affidavit of merits ; as that would be to try the merits of the cause upon the contradictory statements of the parties themselves instead of the testimony of disinterested witnesses. And laying the complainant’s own ex parte affidavit out of view, I have very little doubt that the appellants, upon the hearing, will be able to establish by the witnesses such facts as to satisfy the court that the complainant himself had sufficient to apprise him that the object of Birdsall was to defraud his creditors. It appears that in February, 1838, for some reason which the complainant does not attempt to explain, he gave his note to Birdsall for $800 and interest, payable on demand, and that the latter at the same time gave back to him a mortgage upon his farm for $1000 and interest, also payable on demand ; the other $200 being, as he says, for a previous debt of about that sum. And by a reference to Frink’s affidavit, it will be seen that this was about the same time that Frink found himself in embarrassed circumstances, so as not to be able to meet the debts of Birdsall and Frink which he had agreed to pay; and when he gave the large judgment bond to Merrill & Kinney at random, without taking time to settle and ascertain what was actually due to them. The debt of the appellants had been contracted before that time, and was probably then in suit, as the judgment was obtained in the first week of the next term of the supreme court; about the same time when the complainant says he agreed with Birdsall that the latter should give up to him the $800 note upon receiving whatever money the complainant then had about him. With the money thus received, whether more or less, Birdsall soon after fled from the state. The complainant now says he has refreshed his mind by looking at an endorsement on the note, and that he had previously paid $200 thereon, although he did not recollect anything of that when he was examined before the master. The whole of this transaction is so extraordinary and out of the usual course of honest business transactions, and has about it so many badges of fraud, that I think the vice chancellor should not only have let in the appellants to answer, for the purpose of reducing the decree to what was actually paid upon the $800 note, but also to make a full defence for the purpose of showing the whole transaction fraudulent. But they should not be permitted to set up the defence of usury, even if there is any foundation for it, except so far as relates to any usurious premium which may have been received by the complainant or included in the mortgage.

The cases of Beekman v. Peck, (3 John. Ch. Rep. 415,) and of Millspaugh v. McBride, (7 Paige’s Rep. 509,) show that the entry of a final decree or the enrolment thereof, even where there has been no irregularity in the case, forms no insurmountable obstacle to the opening of a default for the purpose of letting in a defence upon the merits.

The objection to the appeal upon the ground that the order appealed from is neither a final decree nor an order made previous to a final decree, is not well taken. The right of appeal to the chancellor from the decisions of the vice chancellors is given by the constitution, and does not depend upon the statute. (Const, art. 5, § 5.) And if an appeal from such an order is not embraced in the statutory provision limiting appeals from certain orders of the vice chancellors to fifteen days, as was contended for by the respondents’ counsel, the party aggrieved by such an order may appeal therefrom after the expiration of the fifteen days ; unless he is prevented from so doing by the rules or the practice of the court. Neither is there any foundation for the objection that it does not appear that the debt for which the judgment of the appellants was recovered was contracted previous to the giving of the mortgage, so that they could be defrauded thereby ; as Frink swears it was contracted before the dissolution of the copartnership which must have been before this mortgage was given.

The affidavits of Frink and of the complainants’ solicitor show that the appellants may probably reach one half of the potash lot by an execution on this judgment, as the legal title to one half of that lot is still in Birdsall, and therefore could not be reached by an execution on the judgment against Frink alone, under the provisions of the revised statutes. (1 R. S. 744, § 4.) And perhaps, at the termination of a chancery suit with Petit, they might reach the other half; which was sold to pay what Frink insists was not equitably due on the judgment. It is very doubtful, however, whether they have any remedy as to that half. The short answer to all that is stated in the affidavits on that subject, or the subject of the assignment made by Frink for the benefit of his creditors, is that it does not distinctly appear, nor will it I presume be pretended, that the appellants have a clear and perfect remedy against property other than the mortgaged premises, either in the hands of the assignees or of any other person, sufficient to satisfy their whole judgment and costs, exclusive of all prior claims upon such property, and the necessary expenses of the litigation which will be necessary to satisfy their debt in that way. And after they had exhausted their remedy against the property of Frink, it would have been too late to apply to be let in to defend this suit for the purpose of preserving their lien upon the mortgaged premises.

The order appealed from must therefore he reversed, but without costs to either party. And an order must he made to set aside the order to take the bill as confessed against the appellant, and all subsequent proceedings as to them, and to set aside the decree and to discharge the enrolment thereof. They are also to have forty days after the service of a copy of the complainants’ bill to answer the same, with the usual right to apply to the vice chancellor to extend the time, if necessary. But they are not to be at liberty in their answer to set up the defence of usury to the mortgage, unless they expressly waive any forfeiture on that ground, so far as relates to the money equitably due, and legal interest thereon. The appellants must also pay to the respondent his costs of entering the order to take the bill as confessed against them, and of all subsequent proceedings which will be rendered useless by this order, together with the costs of opposing the motion before the vice chancellor; which latter costs are not to exceed fifteen dollars. The costs to be paid within twenty days after service of the taxed bill.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Skeel vs. Spraker and others.
    Where C. sold 50 acres of land and look back a bond and mortgage from the purchaser, for $870 of the purchase money, and subsequently purchased from IC. a farm in Canajoharic, and gave to him a bond and mortgage for the purchase money, and as a further security therefor assigned to him the mortgage upon the 50 acres, both of which mortgages were assigned by K. to J. in payment of a debt, and O., in 1829, sold and convoyed the Canajoharie farm, with warranty, which farm by several mesne conveyances afterwards came to S , and the mortgage upon the 50 acres remaining unpaid, J. in 1830, filed a bill and obtained a decree to foicelóse that mortgage and to sell the premises to satisfy the amount due, and C. subsequently rc-purchascd the 50 acres, and agreed with the mortgagor to satisfy the decree, but neglected so to do, and afterwards conveyed the premises to a bona fide purchaser who paid him for the same ; Held, that the decree upon the mortgage against the 50 acres, was the primary fund for the payment of the debt to J., to the extent of what was due on that decree; and that S. who had obtained an assignment from him of both sccurities, had-a right to enforce the decree against the 50 acres, for the balance due thereon.
    Where a creditor lias a lien upon several different parcels of land for the payment of his debt, and some of the lands still belong to the person who in equity ought to pay and discharge the debt, and other parcels have been sold by him, the lands still belonging to such person are in equity first chargeable with the payment of the debt. And upon the principle that, as between equal equities, he who is prior in time is strongest in right, if the person who ought to pay the debt has conveyed different parcels of the lands upon which it is a lien at several times to bona fide puchaseis, as between such purchasers the lands arc chargeable in equity in the inverse order of their alienation.
    Where a mortgagee has assigned his mortgage as a security for a debt due by him to a third person, his taking back a conveyance of the mortgaged premises and agreeing to pay the debt to the assignee, docs not operate as a merger of the mortgage, either at law or in equity.
    The assignment of a security to the owner of one parcel of land upon which it is an equitable lien, for the purpose of enabling the assignee to obtain payment of the debt from another parcel of land which in equity is primarily liable therefore, only operates as a merger of the lien, in equity, as to the lands primarily chargeable with the debt.
    March 17.
    This case came before the chancellor on an appeal by the complainant from a decree of the vice chancellor of the fourth circuit. From the pleadings and proofs the following facts appeared: In April, 1824, J. Cornue being the owner of fifty acres of land in Preble, in the county of Cortland, subject to a mortgage thereon to the commissioners of public lands in that town, for about $142, sold and conveyed the premises to E. Van Camp, and took back from him a bond and mortgage on the same premises, to secure the payment of $870 part of the purchase money. In 1825, E. Kane, the then owner of a farm in Canajoharie, sold and conveyed that farm to Cornue ; and to secure the payment of $1200 of the purchase money, Cornue gave to him a bond and mortgage on the same premises; and as a further security assigned to him Van Camp’s bond and mortgage on the lot in Preble. Kane afterwards transferred both of these securities to William James, for the payment of a debt; by which James was substituted in the place of Kane, and became entitled to all his legal and equitable rights as to both securities, to the extent of the $1200 and interest thereon. While the rights of the then owners of both pieces of land were in that situation, in February, 1829, Cornue sold and conveyed the Canajoharie farm to A. D. Roof, with warranty, and took back a bond and mortgage for part of the purchase money. And in May, 1832, Roof sold and conveyed the same farm to the defendant, Livingston Spraker, with warranty ; who paid off Roofs mortgage out of the consideration money which was to be paid by him on that sale. Spraker afterwards conveyed the Canajoharie farm to B. F. Johnson, with warranty.
    Sometime in the year 1830, Van Camp having neglected to pay up his bond and mortgage, James, as the assignee thereof, filed a bill against him to foreclose the same ; to which bill he also made the commissioners of public lands of Preble, who held the prior mortgage on the same premises, parties. And on the first day of November, in the same year, a decree was made for the foreclosure and sale of the 50 acre lot in Preble, with directions to the master in the first place to pay out of the proceeds of such sale to the commissioners of public lands the amount due upon their prior mortgage, with interest and costs ; and then to pay to James, the complainant, the amount reported due to him as the assignee of Van Camp’s mortgage, with interest and costs ; with a decree over against Van Camp personally for the deficiency if any such there should be. A short time after this decree of foreclosure Van Camp, finding himself unable to pay up the amount due upon his bond and mortgage and to satisfy the decree, made an arrangement with Cornue by which the latter took a quit claim deed of the premises, and gave to Van Camp a bond in which Cornue covenanted to pay up and discharge the bond and mortgage so foreclosed by James ; so as to indemnify and save Van Camp harmless from all damages, costs, interest, charges, or other claim, on account thereof. Cornue afterwards made several payments to James account of the bond and mortgage given to Kane, leaving due thereon upon the 21st of January, 1835, the sum of $761,10 ; which was less than the amount reported to be due upon the Van Camp bond and mortgage, and for which the decree was obtained, including the interest on such decree. In April, 1833, Cornue sold and conveyed the 50 acre lot in Preble to the complainant; falsely representing to him that there was only $150 due on the Van Camp mortgage, which Cornue promised to pay in a very short time ; but giving him ño information of the fact that the mortgage had already been foreclosed by James and a decree for sale obtained thereon, of which the complainant was then ignorant. At the time of that sale Skeel, the complainant, paid Cornue $200 of the purchase money and gave him a bond and mortgage for the residue; and in November thereafter Cornue assigned that bond and mortgage to L. King and S. Viall. Skeel afterwards paid ^the whole of that mortgage to the assignees, except the amount due to the commissioners of public lands; and he paid most of it before he.was aware of the fraud and deception which Cornue had practiced upon him.
    James having died in December, 1833, and his executors still holding the decree, and also the mortgage upon the Canajoharie farm, as securities for the balance still due, and Cornue having become insolvent, the defendant Livingston Spraker, who had then conveyed the Canajoharie farm to Johnson with warranty, for the purpose of protecting himself from loss in consequence of the mortgage which was a lien on that farm, applied to the executors of James and obtained from them an assignment of the decree against thq Preble lot and of the bond and mortgage originally given to Kane on the Canajoharie farm •, upon payment to such executors of the balance then due and secured by both securities. This assignment was taken in the name of the defendant D. Spraker, who was a brother and the mere trustee of L. Spraker ; and he was authorized by the executors to revive the foreclosure suit for the benefit of L. Spraker, to enable him to realize the money wh'ch he paid to obtain such assignment. Th.e decree was revived accordingly, and the master was proceeding to sell the Preble lot thereon when this bill was filed against the two Sprakers to prevent them from carrying that decree into effect; and Cornue was also made a party defendant in the suit.
    The cause was heard before the vice chancellor upon pleadings and proofs and the admissions and documentary evidence of the respective parties. He decided that the complainant had no equitable right to restrain L. & P. Spraker from proceeding to enforce the decree to the extent of the balance which was due to the executors of James at the time of the assignment to Spraker, with interest thereon. He therefore dismissed the bill with costs as to them and directed the decree of foreclosure and sale to be carried into effect accordingly. But leaving the complainant, if he thought proper, to apply for such a decree •against Cornue as he might be advised to ask for upon the facts of the case. From this decision the complainant appealed to the chancellor.
   The following opinion was delivered by the vice chancellor, upon making the decree appealed frem:

Willard, V. C. The quit claim deed executed by Van Camp to Cornue on the 25th November, 1830, and the bond of indemnity executed at the same time by Cornue to Van Camp, would probably have operated as a satisfaction of the mortgage of the 17th April, 1824, given by Van Camp to Cornue, on the same premises, if Cornue had not previously assigned it to Kane as collateral security for the payment of a mortgage given by him to Kane on the 8th June, 1825. The doctrine of merger was well considered by the court of errors, in James v. Morey, (2 Cowen, 246, 6 John. Ch. Rep. 411, S. C.) The rule at law is inflexible, that where a greater estate and a less meet and coincide in the same person, in one and the same right, without any intermediate estate, the lesser estate is immediately annihilated ; or in the law phrase, is said to be merged in the greater. In analogy to this rule, courts of equity hold that when the equitable and legal estates unite in the same person, the equitable is merged in the legal estate. But in equity this rule is not inflexible., It is said to depen.d on the express or implied intention of the person in whom the estates unite, whether the equitable estate shall merge, or shall still be kept in existence ; and the court will imply an intention to keep the estates separate, or to unite them, as the case may be, according as the general convenience and substantial justice between the parties interested may require. In this case, the rule does not apply, because the legal and equitable estates never for a moment united in the same person. There could', therefore, be no merger. The mortgage was not paid by this quit claim of Van Camp to Cornue. So the parties themselves considered it; and it was for this reason that the bond was given by Cornue to Van Camp to indemnify him against the mortgage. As the assignment by Cornue of the Van Camp bond and mortgage to Elias Kane, on the 8th June, 1825, as before stated, was merely a collateral security for the payment of the bond and mortgage given by Cornue to Kane o.n his purchase of the Canajoharie farm, the payment of the lat-, ter mortgage would operate to restore the Van Camp bond. and mortgage to Cornue. But in order to produce that result, there must be a technical payment of the Kane bond and mortgage, in contradistinction from a purchase and assignment thereof. Thus, if Cornue had sold the Canajoharie farm subject to his mortgage to Kane, and the purchaser had paid it off, such payment would have enured to the benefit of Cornue, and would have re-invested him with the Van Camp bond and mortgage, which would thus have been ipso facto discharged.

But such was not the mode in which the business was transacted. On the 28th of February, 1829, Cornue sold the Canajoharie farm to Roof for $1600, with covenants of warranty. On the 14th May, 1832, Roof sold to Livingston Spraker the same farm, with warranty ; and on the 27th April, 1833, Spraker sold to Johnson, with warranty also. Now it is obvious that Cornue is the man who is ultimately liable to pay off the Kane mortgage, and Cornue is the one who is ultimately liable to pay the Van Camp bond and mortgage ; or, which is the same thing, to indemnify against it. He having sold the fifty acres with warranty to the complainant, on the 1st April, 1833, is bound to warrant and defend against that mortgage. The parties standing in this relation to each other, and Cornue being insolvent, it is evident that somebody must be the sufferer. The object of this suit is to determine on whom the loss should fall.

William James having, in September, 1826, become the assignee of both the Van Camp mortgage given to Cornue, and the mortgage given by Cornue to Kane for the same debt, (the Van Camp mortgage being collateral to the Kane mortgage) had a right to collect his debt on either mortgage. If, then, the complainant, perceiving this dilemma, had paid James the amount of his demand and taken an assignment of both the mortgages, could he not have enforced payment of the Kane mortgage out of the Canajoharie farm 1 That mortgage being the oldest incumbrance on the farm and not having been paid, could beyond controversy be collected out of that farm; and the occupant must look back to his immediate grantor for indemnity, and the latter to his grantor, and so on until, as "before stated, Cornue being the first warrantor after the mortgage, must make up !he 'loss. This court could not have prevented the complainant from pursuing that course, because there is no stronger reason why the complainant should lose by Cornue than the owner of the Canajoharie farm, and the court would leave the loss to remain where it fell.

Instead, however, of adopting this course, the complainant remained silent, and Spraker made the purchase from the estate of James of the two securities. Is there any reason why he should not avail himself of the fruit of his vigilance 1 It is said by the complainant that he paid off the Kane mortgage, and thereby re-invested Cornue with the Van Camp moitgage, which has thus become extinct- But this allegation is not supported by the facts. If Spraker had purchased the Canajoharie farm subject to the mortgage given by Cornue to Kane, or if he was in any way bound to p-y that mortgage as a part of the consideration of his purchase, as is alleged in the bill, the complainant’s view of the case would be correct. But the answ'er denies the fact; and being responsive to the bill, is evidence for the defendants. The negotiation between Spraker and the representatives of James, cannot be called in strict legal language a payment. It was in fact a purchase of the two securities, with a view to use them in his own protection, and thus to require the complainant to look to Cornue for indemnity, rather than to be compelled to seek indemnity from that quarter himself. There is nothing improper or unfair in this transaction. Spraker and the complainant may be assumed to be equally innocent, and a loss is to be borne by one of them in consequence of the insolvency or fraud of Cornue. The rule is, that the loss is to he left with him on -whom it has fallen; and the equities being otherwise equal, the priority of time must determine the right—qui prior est tempore, potior est jure.” See opinions of Chancellor Kent, in Berry v. Mutual Ins. Co. (2 John. Ch. R. 603,) and of Chief Justice Savage, in James v. Morey, (2 Cowen, 316.) Spraker has first obtained the securities from the estate of James, and cannot be deprived of them. Each man in a storm has a right to seize a vacant plank, tabula in naufragio—but he has no right to displace his co.npt nion whose superior dexterity or strength has enabled him to gain the p.ior possession. If it can save but one from drowning, he alone is entitled to it who has first sought its protection.

I have hitherto considered the cate as if the equities were entirely equal. But it is by no means clear that such is the case. This branch of the subject may be reviewed in several aspects. It is said by the defendant, and I think truly, that Spraker has not only the prior but likewise the better equity. He purchased in May, 1832. The complainant did not purchase till April, 1833. Spraker’s right therefore to acquire the mortgage which Cornue gave to Kane on the Canajoharie farm, existed before the complainant had any interest in the matter. He also, as has been before stated, obtained an assignment of the mortgages and decree from the executors of James. He is thus lawfully in possession of the very subject of controversy.

The complainant purchased the fifty acre lot of Cornue in 1833, pendente lite. James filed his bill to foreclose the Van Camp mortgage on the said fifty acres in 1830; and Cornue took a re-conveyance from Van Camp in the same year, though subsequent to the commencement of the suit. The doctrine with regard to purchasers pendente lite has been fully considered by the courts in this state, and will be found amply explained and illustrated in Murray v. Ballou, (1 John. Ch. Rep. 566,) and several subsequent cases, (2 id. 444, 7 Wendell, 152, 8 John. R. 484, 7 Wendell, 157, 11 id. 442.) The established rule is, that a lis pendens duly prosecuted and not collusive, is notice to a purchaser so as to affect and bind his interest by the decree ; and the lis pendeiis begins from the service of the subpoena, after the bill is filed. The litigating parties are exempted from taking notice of a title so acquired ; for as to them, it is as if it had never existed. The rule may sometimes operate with hardship, but the general convenience requires it. (11 Ves. 194.) So far as the equities between these parties are concerned, the complainant must be said to have purchased the fifty acres with a full knowledge that James had filed a bill to foreclose the Van Camp mortgage. He knew that the premises were chargeable with that mortgage ; and that if it was not paid, he himself would be liable to be- turned out of possession on the production of the master’s deed under the decree. He must be presumed to have made provision for all these contingencies in his purchase ; and if he omitted to do so, he must be chargeable with negligence. He is bound by the decree of foreclosure, and is not permitted to call it in question as against James, the complainant therein, or any one claiming under him. The decree for the balance is entitled to be enforced against the premises in question.

It has been made a point on the part of the defendants, that the equity of the complainant’s bill, and on which the injunction was probably awarded, has been denied by the answer. Thus, that the material allegations in the bill, that Cornue furnished part of the money paid by Spraker to the executors of James on obtaining the assignment of the decree ; that the assignment was made at the request of Cornue; and that Spraker purchased of Roof subject to the Roof mortgage and agreed to pay James the balance of the Cornue mortgage to Kane, are all denied in the answer ; and that these allegations are not supported by proof. The case then stands before me solely on the effect of the transactions between the parties already adverted to, upon their respective rights and equities. On the whole, therefore I am of opinion that the bill cannot be supported as against the Sprakers, and must, as to them, be dismissed. That will of course dispose of the injunction, as I presume it was on its face a mere temporary injunction. With regard to Cornue, the bill might, perhaps, be retained if there was any object to be gained by it. The propriety of this course was not made a subject of argument, and I will therefore leave the cause, as to him, for such ulterior steps as may be deemed fit and proper.

E. W. Leavenworth & D. B. Noxon, for the appellant.

The quit claim deed executed by Van Camp and wife to Cornue, and the bond of indemnity executed at the same time by Cornue to Van Camp, operated as a satisfaction of the mortgage in question as between Yan Camp and Cornue. Cornue having assigned to Kane Van Camp’s bond and mortgage merely as collateral security to his, Cornue’s, bond and mortgage to Kane, the moment Cornue’s bond and mortgage to Kane were paid, the Van Camp bond and mortgage remained no longer collateral security to Kane, but the same became the property of Cornue, and became satisfied. Kane could only assign to James the interest he had in the Yan Camp bond and mortgage, which was extinguished when Spraker paid to James’ executors the amount due on the mortgage from Cornue to Kane. Daniel Spraker therefore, as the trustee of Livingston Spraker, acquired no interest by virtue of the assignment from the executors to him, their interest having been extinguished. The assignment from the executors of James to Daniel Spraker, was in fraud of the complainants’ rights. The original decree was satisfied by the payment of the mortgage from Cornue to Kane, as the decree did not change the nature of the security, but the same still remained collateral. The decree of revivor, was a mere substitute of other parties, and is subject to the same equities as the original decree, and was merely collateral. The Van Camp bond and mortgage being assigned as collateral security to the bond and mortgage from Cornue to Kane, the latter should have been first resorted to; and there is no pretence that it was not ample. (1 Story’s Com. on Eq. 472, note, and 477, 478, 479.)

H. Loucks § D. Cady, for L. and D. Spraker.

The appellant’s (complainant below) equity being wholly denied by the responsive answer of the defendants, the injunction must be dissolved. The Yan Camp mortgage and the de-. cree of foreclosure on it of November 1, 1830, being matters of record, were notice to the complainant when he purchased of Cornue. The complainant had likewise actual notice, as he admits in his bill of complaint, that a balance was due on the Van Camp mortgage when he purchased. As Cornue has had no interest in the Van Camp mortgage or decree of foreclosure upon it, nor any control over either since the assignment of the mortgage by him to Kane in 1826 ; no act which he, Cornue, has since done can affect or impair the rights of the assignee. The defendant L. Spraker, the beneficial assignee, has a right to enforce the decree on the Van Camp mortgage for the balance' due on the Cornue mortgage, (to secure the payment of which the Van Camp mortgage was assigned by Cornue,) as he, Spraker, is warrantor of the title of the Canajoharie farm, and both Cornue and Roof are insolvent. The doctrine of merger does not apply to this case, as the legal and equitable estates have not been united in the same person, and as it was Spraker’s interest to keep them disunited ; from which equity implies an intention to do so. (2 Cowen’s Rep. 246. James v. Morey, in error on appeal, 6 John. Ch. Rep. 420.) The defendant L. Spraker has not only the prior equity, but also the better equity. (2 Cowen’s Rep. 311.) He purchased in 1832, and the complainant in 1833 ; and he obtained an assignment of the Cornue mortgage, and of the Van Camp mortgage and of the decree upon it, for his own benefit.. The complainant purchased from Cornue the fifty acre lot pendente lite during the pendency of the proceedings for the foreclosure of the Van Camp mortgage, and Cornue purchased also from Van Camp pendente lite. The complainant, deriving his title under Van Camp, the mortgagor, subsequent to the mortgage and decree of foreclosure, is not permitted to call in question the rights of the assignee of the mortgage and decree to enforce such decree for the balance due on the Cornue mortgage, to secure the payment of which the assignment was originally made by Cornue.

It is a general principle, that all persons who come in as purchasers 'pendente lite, though they are not parties to the suit, they and their interests shall be bound and avoids ed by the decree. (Per Kent, Ch. in Murray v. Ballou, 1 John. Ch. Rep. 579.) It is a general rule, also, that an alienation pending a suit is void. (Per Ld. Camden, in Ambler, 676, cited also in 1 John. Ch. Rep. 580, per Kent, Ch.) And a purchase of the subject matter in controversy pendente lite, does not vary the rights of the parties in the suit. (Per Kent, Ch. in Murray v. Lilburn, 2 John. Ch. Rep. 444. Jackson v. Andrews, 7 Wend. 152. 8 John. R. 484. 7 Wendell, 157. Parks v. Jackson, 11 id. 442.) The assignment by Cornue to Kane of the Van Camp mortgage is absolute on its face, and Cornue, the assignor, was therefore not a necessary party to the foreclosure suit. (Ward v. Van Bokelin, 2 Paige’s Ch. Rep. 295.) It is, however, conceded that the assignment was as collateral security to secure the payment of the Cornue mortgage; and so far it is absolute to all intents, and so far only the defendant L. Spraker claims it. Where a creditor has a lien upon two funds for the payment of his debt, chancery will not compel him first to exhaust the fund which the junior creditor cannot reach, if the senior creditor will thereby be injured. (Woolcocks v. Hart, 1 Paige’s Ch. Rep. 185. 5 John. Ch. Rep. 320, 328.) Nor will chancery, except under very peculiar circumstances, compel a creditor to look first to the principal debtor and exhaust his remedy against him, before he may resort to the surety. (Hays v. Ward, 4 John. Ch. Rep. 123, 131.)

The Chancellor.

It is perfectly clear that there was no merger of the Van Camp bond and mortgage, either in law or equity, by the re-conveyance to Cornue after the decree of foreclosure of that mortgage in favor of James, the assignee. As the interest in the bond and mortgage was in James, and the title to the land in Cornue, subject to the payment of the. mortgage debt to James, it is impossible to consider the interest in both as being united in the same person, so as to produce a merger. James, however, held the decree against the farm which then belonged again to Cornue, and the mortgage on the Canajoharie farm which then belonged to Roof, as security for the same debt. How then stood the equities at that time, as between Cornue and Roof, as to the enforcing the one or the other of those securities by James for the recovery of his debt 1 Clearly as matters then stood Roof, who had received a warranty deed from Cornue, had an equitable right to insist that Cornue’s own property should be first charged, for the protection of Roof’s title according to the warranty. Both mortgages were given to Kane at the same time as different parts of the security for the payment of the same debt, to wit, the purchase money of the farm which was sold and conveyed at that time. They were therefore in the hands of Kane in the nature of one mortgage or security upon both pieces of land. Even if Cornue had continued to be the owner of the Canajoharie farm and Van Camp of the Preble lot, as they were previous to the sale of the farm to Roof in 1829, certainly Van Camp could not have complained that James compelled him by a foreclosure of his bond and mortgage, which was all justly due, to pay the debt for which Cornue’s Canajoharie farm was also holden by virtue of the other mortgage. And after the Canajoharie farm had been sold to Roof with warranty, as it was when the foreclosure suit was commenced, Roof certainly would have had good reason to complain if James had proceeded to enforce the payment of his debt against that farm, and to drive him back to his remedy on his covenants of warranty contained in his deed. Under those circumstances, if James had refused to proceed upon the Van Camp mortgage, and had refused to assign the same to Roof upon receiving the balance of his debt, so that the latter could have proceeded thereon for his indemnity and to recover back the money, a court of equity might properly have interfered to prevent James from foreclosing the other mortgage ; especially if Cornue had been insolvent, as he now is, so that Roof could have had no remedy against him on his covenants of warranty. Neither were the equities between these two securities in any way changed by the subsequent re-conveyance of the Preble lot to Cornue, and his bond of indemnity to Van Camp. If the question was as to Van Camp’s personal liability upon his bond, the equities between him and Roof would indeed be equal except in point of time. But even in that case, the maxim, that as between equal equities, he who is first in time is strongest in right, would have turned the scale in favor of Roof; whose equity, arising out of the covenant of warranty, arose more than a year before Van Camp’s, under his bond of indemnity.

The question, however, is not as between Van Camp’s personal liability and Roof’s farm; but it is between the subsequent grantee of that farm and the subsequent grantee of Cornue, the owner of the Preble lot under Van Camp’s quit-claim deed. And if, as against Cornue as such owner of the Preble lot, Roof or his assignee had an equitable claim to have the debt due from Cornue, and which was then secured to James by the decree against that lot as well as by the mortgage upon the Canajoharie farm, satisfied out of the property of the real debtor instead of the property of his grantee, Cornue’s subsequent conveyance to the complainant could not deprive the grantee of Roof of his prior equity arising from the previous deed.

Viewing the case in this light, it comes distinctly within the principle which is constantly acted on by this court, and other courts of equity, that where there is a lien upon] different parcels of land for the payment of the same debt J and some of those lands still belong to the person who ira equity and justice ought to pay such debt, and others have been transferred by him to other persons, his lands shall be first charged ; and if he has sold the several parcels at different times, they are to be charged in the inverse order of their alienation. (Gill v. Lyon, 1 John. Ch. Rep. 447. Clowes v. Dickinson, 5 Idem, 235. Stoney v. Shultz, 1 Hill’s Ch. Rep. 500. Gouverneur v. Lynch, 2 Paige’s R. 300. Guion v. Knapp, 6 Idem, 35.) Here the Canajoharie farm had been conveyed with warranty to Roof, and he had again conveyed to L. Spraker nearly a year before the complainant took his conveyance of the Preble lot from Cornue, which lot was then, in equity, the primary fund for the payment of Cornue’s debt to James.

The complainant was not ignorant of the existence of the mortgage on the Preble lot, and that it was then in the hands of an assignee 5 as he says Cornue promised to pay off the small balance of $150, which he pretended was all that was then due. This was sufficient to put him on inquiry as to the situation of that mortgage and the equitable rights of other persons as connected with it. And if, instead of relying upon the false and fraudulent representations of the person from whom he was purchasing, he had applied either to Van Camp, the mortgagor, or to James, he would have been informed of the foreclosure suit. But even without any such constructive notice, as Spraker had the prior equity, and has now also the better legal right by the assignment of the decree from the representatives of James, it would be contrary to the settled principles of this court to attempt to deprive him of that right.

The taking of an assignment of the mortgage upon theCannajoharie farm, simultaneously with the assignment of the decree against the Preble lot, for the avowed object of obtaining indemnity by means of that decree for the money then paid to the executors of James, cannot be considered as a payment of either the mortgage or the decree ; especially las the assignment was made to a third person as a trustee. ¿And according to the decision of this court in the recent case of Millspaugh v. McBride, (7 Paige’s Rep. 509,) it would not have operated as a merger or extinguishment so as to deprive the assignee of the equity which it was intended to secure to him, even if the assignment had been made directly to L. Spraker himself; or if Johnson who was then the owner of the Canajoharie farm had purchased the mortgages and decree and taken an assignment of them in his own name.

For these reasons the decree of the vice chancellor was right, and according to the settled principles of equity. It must therefore be affirmed with costs to the defendants D. Spraker and L. Spraker; but without prejudice to the right of the complainant to apply for such a decree against the defendant Cornue as he may think himself entitled to ; as authorized by the opinion of the vice chancellor.


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    Ridabock vs. Levy.
    A vice chancellor, by virtue of 111 at office, is not authorized to lake the ac knovvledgmcnt of deeds and other legal instrument!-., so as make such acknowledgment legal evidence of the execution of the. d-ed or instrument without further proof.
    Where by mistake an appeal bond is not acknowledged before a proper officer, the error may bn corrected by a new acknowledgment of the bond filed. But whore the object of the appeal is to take advantage of a mere technical error on the part of the respondent, the court, will not allow such a mistake in the acknowledgment of the appeal bond to be corrected.
    The court will not relieve a party from the consequences of a mere technical slip in his practice, to enable him to take advantage of a similar slip of his adversary.
    Where the appeal bond is not duly acknowledged according to the provisions of the 17ád rule of the court of chancery, the appeal is irregular, and may be dismissed for that cause.
    April 7.
    This was an application to dismiss an appeal from an order of the vice chancellor of the first circuit, authorizing the complainant to re-swear his bill, and file it nunc pro tunc. The objection to the regularity of the appeal was that the appeal bond was acknowledged before the vice chancellor, instead of an officer authorized by law to take the acknowledgment of deeds, &c. as required by the 172d rule of the court.

      T. S. Brady, for the appellant.

      J. Rhoades, for the respondent.
   The Chancellor.

The vice chancellor does not appear to be authorized to take the acknowledgment of deeds and other instruments, so as to make that acknowledgment legal evidence without further proof. He is only empowered to do those duties which the circuit judge of the first circuit was originally authorized to do as a vice chancellor. That did not include the right to take acknowledgments which was a statutory power given to the officer in his character of circuit judge merely, and not as an officer of the court of chancery. The objection to the bond, however, was merely technical, and as the appellant’s solicitor offered to have the bond properly acknowledged, it would be a matter of course to permit it now to be done, and to retain the appeal upon the usual terms, if any substantial right of the appellant was to be sacrificed by granting this motion. But it appears that the object of the appeal itself is to enable the appellant to avail himself of a mere technical objection to the manner of verifying the respondent’s hill; the same having been originally sworn to before a commissioner of deeds, who was the complainant’s solicitor. Under those circumstances the vice chancellor was probably right in permitting the bill to be re-sworn before another officer, without prejudice to the injunction. At all events, this court will not, where the appellant himself has made a slip, relieve him from the consequences thereof for the mere purpose of enabling him to take advantage of a similar-slip on the part of his adversary.

The appeal must therefore he dismissed with costs.


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    G. H. & P. A. Meserole vs. The Mayor and Common Council of Brooklyn.
    Under the general turnpike laws, the lands of an individual taken for the use of a turnpike road, are not the property of the turnpike company until the damages assessed in favor of the individual owner are actually paid ; even where payment has not been demanded, and there is no person living on the land who is entitled to receive such damages.
    It seems, however, that in such a case the corporation is authorized to take possession of the land for the purposes of the road, and to retain possession until payment of the damages assessed are demanded. But if the payment is not then made, the right of the company to the possession of the land ceases.
    Where only a part of the lands which are directed to be taken for the opening of a street in the city of Brooklyn have been included in the report of the commissioners of estimate and assessment, the confirmation of their report is irregular; as there cannot be an absolute confirmation of the report of the commissioners, so as to vest any rights under the same, until the damages for all the lands taken for the proposed improvement have been ascertained and settled, and properly assessed upon the owners of the lands to be bencfittcd by such improvement.
    Under the act of April, 1835, authorizing the appointment of commissioners to lay out the streets, avenues and squares in the city of Brooklyn, the mayor and common council were not authorized to lay out and open any street or avenue in the new wards of that city, after that act took effect, until the same had been authorized by such commissioners.
    The court of chancery is not authorized to interfere to correct an erroneous assessment, which has been duly confirmed, where the commissoners have merely erred in judgment as to the value of the contemplated improvement to the owner of the lands assessed ; although the amount so assessed for the supposed benefit is more than the lands will he actually worth after the contemplated improvement has been made.
    April 7.
    This was an appeal from a decision of the vice chancellor of the first circuit, refusing to dissolve an injunction. J. Meserole, the father of the complainants, who died in 1827, was at the time of his death seized in fee of a lot of land in the town, now city of Brooklyn, containing about. 23 acres; and by his death the same descended to the complainants, who were then infants under the age of four years, subject to the right of dower of their mother therein. Shortly after the death of their father, the Wallabacht and Bedford Turnpike Company was incorporated, for the purpose of making a road from Sands-street, in the village of Brooklyn, to the village of Bedford ; with all the rights and privileges, powers and immunities, which were given and granted by, and subject to all the conditions, provisions, restrictions and regulations contained in the general act of March 13th, 1807, relative to turnpike companies. (1 R. L. of 1813, p. 228.) In 1827, the road was laid out, about four rods in width and extending through the lands of the complainants, according to the directions of the statute on that subject. And the president and directors of the turnpike company being unable to agree with all the owners of the land required for their road, particularly with the complainants, who were infants, applied to one of the judges of the court of common pleas of Kings county to appoint appraisers ; who were appointed accordingly, and proceeded to appraise the damages of the complainants and of the other owners of lands who could not agree with the turnpike company, as directed by the statute. They made an inquisition, which was duly acknowledged and recorded in the office of the clerk of the county of Kings, in April, 1S28; and in which inquisition the damages of the complainants, as the heirs of J. Meserole, for their lands thus taken for the turnpike road were appraised at $90. The turnpike company, shortly after the filing of the inquisition, proceeded to open their road through the land of the complainants, and the same has been ever since used as a public road. But as there was no person living on the said land who was authorized to receive the damages thus appraised, and the complainants were infants, the damages have never been paid by or lawfully demanded of the turnpike company.
    In March, 1836, an application was made to the corporation of the city of Brooklyn, by Van Burén, the step-father of the complainants, and others, to lay out, open and continue Bedford road, (which was the name of the turnpike road, so laid out and opened by the Wallabacht and Bedford Turnpike Company,) to the width of 80 feet, commencing at its junction with the Jamaica Turnpike, and running thence in the present course of the Bedford road to Clinton avenue, &e. See. Upon this application the common council determined and fixed the limit or district which was to be benefitted by the proposed improvements, and beyond which, the assessments therefor were not to extend ; and caused notice of the application to be published in the manner required by the first section of the act of April 30th, 1833, relative to the village of Brooklyn ; which act as to the streets, was made a part of the city charter. (Laws of 1834, p. 116, ^ 72.) And no remonstrance having been presented against the proposed improvement, the mayor and common council, by a resolution, determined to make the same. In pursuance of which, the first judge of the county appointed three commissioners of estimate and assessment, and Van Burén, who had married the mother of the complainants, was appointed by the said first judge their guardian ad litem, to protect their interests in the proceedings, as required by the act of 1833. He assented in writing to accept the 'trust, and attended before the commissioners of estimate and assessment accordingly. The commissioners assuming that the turnpike was properly laid out through the lands of the complainants, and that only two small strips on each side of it were wanted for the proposed improvement, to extend it to the width of eighty feet, reported that two strips of land of the complainants, particularly described in the report, about seven feet in width on each side of the Bedford road, and about nine hundred and sixty-eight feet in length, were required for the purpose of making the improvement directed by the city corporation. And they estimated and assessed the damage to the owners of those two strips of land at $2168,76, and the benefit to them as the owners of the residue of their lands which were within the limits of the assessment district, at $.139,31. This report was duly confirmed by the supreme court, in December, 1836, no objection having been made to the same by the guardian ad litem of the complainants.
    The complainants subsequently filed their bill in this cause, by A. Meserole, their next friend-, insisting that they were still the owners in fee of the land over which the Wallabacht and Bedford Turnpike was laid out, and that the commissioners of estimate and assessment should have included that land with the two strips on each side thereof, which were taken for the proposed improvement; and should have allowed them the value thereof in damages, to be deducted from the benefits which they were to receive in consequence of the improvement. They also alleged in their bill, that the amount assessed as benefit to their lands lying within the limit of the assessment district, after deducting the sum allowed for damages, far exceeded the real value of those, lands, even if the Bedford road was actually laid out as a public street of the width of eighty feet, as contemplated by the commissioners of estimate and assessment; and that the corporation of the city of Brooklyn was proceeding by a distress warrant to collect the assessment. The complainants therefore prayed that the proceedings of the mayor and common council in opening and extending the Bedford road, so far as the same was based upon the presumption that the road had been legally laid out through their lands, might be set aside and vacated, and declared void, so far as the same related to or in any way concerned their estate and interest; that their lands might be decreed to be discharged from the assessment ; and that the defendants might be restrained by injunction from collecting such assessment, or proceeding further in the matter so far as related to the rights or interests of the complainants. The only disputed fact in the case was, as to the value of the complainants’ lands which were assessed for benefit, beyond the amount of damages for the land taken. In the first answer of the defendants, which was sworn to by the mayor, he said they were ignorant whether the amount of the assessment, after deducting the damages, exceeded the value of the lands assessed, or what was the actual value of the same. But that Van Buren, the guardian ad litem, knew the amount of the assessment and did not object to it; but on the contrary, deemed it for the benefit of the infants, that the report should be confirmed. And the defendants insisted that the report of the commissioners of estimate and assessment, and the confirmation thereof by the supreme court, were final and conclusive upon the parties, and could not be impeached or altered by the court of chancery. And they prayed the same benefit of that objection, as if they had pleaded the proceedings in the matter of the opening, laying out and continuing Bedford road. In their further answer, they in effect denied that the amount of the assessment for benefit was more than the value of the lands charged therewith ; stating that at the time of the assessment, according to their judgment and belief, the lands of the complainants, which were charged as benefited by the contemplated improvement, were worth about $250 for each lot of 2500 square feet; and that although the value of real estate had depreciated subsequent to the assessment, the defendants believed that at the time of the putting in of such further answer the lands assessed would still be worth about $200 a lot, if the improvements as contemplated were completed.

      J. A. Lott, for the appellants.
    The bill itself is insufficient to authorize an injunction. It shows that the defendants had jurisdiction to lay out the road ; and having jurisdiction, they cannot be interfered with by the court of chancery, for irregularity, by injunction. The objection to the defendants’ proceedings amounts only to irregularity. (Laws of 1827, p. 350. Id. 1833, p. 499. Id. 1834, p. 90, § 72, &c. 42, &c. Id. 1835, p. 124, § 3. Coles v. Trustees of Williamsburgh, 10 Wendell, 659. 1 R. L. 228.) If the acts of the corporation were void, for want of jurisdiction, the complainants have a perfect remedy at law for all damages or injury which they may sustain. The complainants have not only redress for damages in a suit at law, but they have also a perfect remedy at law by certiorari, to set aside the proceedings if void or irregular. The remedy being complete at law, and no fraud or corruption in the proceedings being alleged or proved, chancery has no jurisdiction. (Champlin v. Mayor, &c. of New-York, 3 Paige’s Rep. 573, 576. Patterson v. Corporation of New-York, 1 Id. 114, 116. Le Roy and others v. Mayor, &c. of New-York, 4 John. Ch. Rep. 352. Mooers v. Smedley and others, 6 Id. 28. Murray v. Graham, 6 Paige’s Rep. 622, 624.) If the bill is sufficient to warrant the injunction, all its equities are denied by the answer. The turnpike company were authorized to take the complainants’ lands wúthout a previous actual payment of the damages assessed. (Jerome v. Ross, 7 John. Ch. Rep. 315. Wheelock v. Pratt, 4 Wendell, 650. Rogers v. McGee, 20 John. Rep. 735. Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wendell, 9, 10, &c.) The act authorizing the appointment of commissioners to lay out streets, passed in 1835, did not interfere with or deprive the corporation of its jurisdiction. (Laws of 1835, p. 124, § 3, p. 136, § 1, 2, 7.) The defendants were therefore, on the answer, entitled to a dissolution of the injunction, and the vice chancellor’s order denying the motion for a dissolution, and the order of affirmance by the chancellor, were erroneous.

      R. Bogardus, for the respondents.
    The paying for private property taken for public purposes is a condition precedent. (Const. § 7.) S.o far as the act of 1813 is inconsistent with that, it is void or repealed. The heirs of Meserole were therefore never divested of their exclusive right to the property. If they were at all divested, it was of the use of the ground and not of the fee ; purchases under the turnpike act, by appraisal of damages, only obtain the right to pass over, &c. (1 R. L. of 1813, p. 225, § 1.) And when ceased to be used as a turnpike it reverts to the original owner. (12 Wendell, 371.) The road, 66 feet, belongs to the heirs of Meserole or to the turnpike company, and. nptwithstanding the proceedings, it remains the property of either such heirs or of the turnpike company. The proceedings of the commissioners, so far as it respects the land in question and the heirs of Meserole, are void; the commissioners were ordered by the common council to lay out and open the Bedford road 80 feet wide. They could not adjudicate. They were only authorized to do as ordered. They were not authorized to lay out two strips. They acted in that and in assessing us as fronting on an 80 foot street belonging to the city of Brooklyn, without authority and without jurisdiction of the act they undertook to perform. They were neither directed nor authorised to widen an old road, and the only power that had the right to adjudicate, treated and considered the 66 feet as private property and not as a public road. All the proceedings on the part of the corporation of Brooklyn, in laying out the avenue in question, are absolutely void. By the apt of 23d April, 1835, exclusive power to lay out, &c. was. vested in three commissioners; the proceedings in this case were commenced by the petition presented in March, 1836, after the power had been vested in another body—the act took effect on the 1st day of September, 1835. (Laws of 1835, p. 136. 6 Paige’s Rep. 264. 5 Id. 501.)
   The Chancellor.

It is pretty evident in this case that an assessment has been made on the lands of the complainants, which must probably produce a total sacrifice of the property assessed, unless they can obtain relief, either in this court or by legislative interference. Judging from the facts before me, I cannot see how it was possible for the commissioners of estimate and assessment, to have come to the conclusion that the lands assessed could be benefitted to the amount of about $14,000 by the contemplated improvement f even upon the principles on which they proceeded relative to the Bedford road as a public highway, already laid out and established. As I understand the case, the assessment limits only included of the complainant’s lands 107 feet on each side of the Bedford road as originally laid out by the turnpike commissioners, and extending in length on that road about 968 feet. This would give to the complainants 76 lots of 25 feet front, and 107 feet deep, upon a street of 66 feet in width. And if the contemplated improvement was made, they would have the same number of lots of 100 feet in depth, upon an 80 foot street. These lots,at the valuation fixed upon them by the second answer of the defendants, at the time of the assessment when lands were the highest, were worth $250 ; making the sum of $19,000 for the lands assessed. And yet it, is supposed these lots will be benefitted by the widening and extending of this street $139,31 ; or about three fourths of their then estimated value, and nearly their full value one year thereafter, when the second answer was put in. It is possible, that some further benefits might accrue to these lots, by the extension of Bedford road beyond where it was already opened four rods wide, in addition to the benefit of having it fourteen feet broader in front of the lots assessed. But there is much reason to believe that the guardian ad litem who was appointed to take care of the rights of these infants, and who was himself one of the applicants for the proposed improvement, has under the influence of mental hallucination, or otherwise, suffered their property to be assessed to about its full value, and probably much more than it is now worth; as a supposed benefit which that property was to receive from the contemplated improvement. If the whole proceedings, however, have been regular, and the commissioners of estimate and assessment have merely erred in judgment, I think this court has no jurisdiction to correct their error, or to give relief to the complainants. For there is no allegation of fraud or collusion on their part, nor on the part of the guardian ad litem who was appointed in the mode prescribed by law to protect the rights of the complainants on that assessment, and to appeal from the decision of the commissioners, if he believed they had done injustice to these infants.

The first objection to the regularity of the assessment is that the commissioners of estimate and assessment have assumed that the turnpike road was not only regularly laid out, but that it was already the property of the public, so that the complainants were entitled to no compensation therefor. In this I think the commissioners were clearly under a mistake. For the purpose of this decision,!shall take it for granted that the turnpike was properly laid out, and that the damages of the complainants for that part of their farm which was taken for the use of the corporation were legally and constitutionally assessed, pursuant to the provisions of the general turnpike act of 1807. Still that act did not vest the title of the land in the turnpike company, even for the purposes of the road during the existence of the charter, until the actual payment of the damages which had been so assessed. The language of the statute is, that the turnpike corporation, upon paying to the owners of the land the sum assessed and awarded by the appraisers in their inquisition, shall and may have and hold the lands to them and their successors and assigns, &c. (1 R. L. of 1813, § 3, p. 231.) It is true, the statute does, by an implication, authorize the turnpike company to enter upon the land for the purpose of making their road thereon, if there is no person living on the land who is authorized to receive the damages, unless such damages shall be lawfully demanded. The title to the land, however, is still in the original owner ; and the moment he demands the payment of the damages from the proper officers of the company, and the same are not paid, he may bring an action to recover the possession of the land. It is perfectly clear, therefore, that the complainants before they could be divested of their title to so much of their farm as was included in the old Bedford road, were entitled to the payment of at least the amount which was awarded to them by the appraisers in 1828. And the opinion of Ch. J. Nelson appears to be that they were entitled also to the benefit of the contingent right to the reversion in the land, in case of the dissolution of the corporation, or of the abandonment of the road. (See Hooker v. The Utica and Minden Turnpike Company, 12 Wendell’s Rep. 371.) Whether the turnpike company was in existence at the time the commissioners of estimate and assessment made their rep ort in the present case, does not distinctly appear from the pleadings ; but the legal presumption is that it was, as I have not found any statute dissolving that corporation, or authorizing it to abandon the road. It is clear, however, that if that corporation should be legally dissolved without having paid the amount awarded to the complainants for damages, the legal title to that part of the Bedford road which is in question here, would belong absolutely to the complainants; and that such title could not be divested, for the purposes of this public street, without paying them the full value of the land, either in money or in the benefits which would thereby accrue to them by the increased value of their adjoining lands. It does not distinctly appear in this case whether the petition to the common council for the improvement, and the resolution of the city corporation adopting the same, actually contemplated the taking of the lands included within the limits of the turnpike, as well as the two narrow strips of each side of the same, for the use of the corporation’ as a public street. If the former was the case, then the confirmation of the report was irregular, and may still be opened ; as the commissioners have not in form appraised the damages to which the complainants, as the owners of the original site of the Bedford road through their farm, are entitled. And as I understand the recent decision of the supreme court In the matter of Anthony-street, (20 Wend. Rep. 618,) there cannot be an absolute confirmation of the report of commissioners of estimate and assessment, so as to give any vested rights under the same, until the damages for all of the lands taken for the proposed improvement have been ascertained and settled, and are properly assessed upon the owners of those lands which will be benefit ted by the improvement. If this is the correct construction of the statute, and the resolution of the mayor and common council actually contemplates the taking of the whole of the old Bedford road for the purposes of this improvement, they ought not to be permitted to proceed and enforce this assessment against the complainants personally, by virtue of the distress warrant, or by a sale of their lands which have been assessed, until the proper steps have been taken to divest their title to the whole of the lands which are to be taken for the improvement, by an assessment of the damages and an offset of the same against the supposed benefit of their adjacent lands.

I think, however, there is a more conclusive objection to the proceedings of the defendants, in this case ; and that is, that the mayor and common council had no legal authority to lay out and open this new street through the lands of the complainants, in one of the new wards of the city, subsequent to August, 1835 ; until the same had been authorized by the commissioners appointed under the act of the 23d of April in that year, authorizing the appointment of commissioners to lay out streets, avenues and squares in the city of Brooklyn. That act, which took effect on the first of September after its passage, gives to the commissioners, to be appointed by the governor on the application of the mayor and common council, the exclusive power to lay out streets, avenues and public squares within that part of the city comprising the sixth, seventh, eighth and ninth wards, and to direct the closing of any streets, roads, highways, lanes, avenues or alleys which had not been theretofore approved of by the mayor and common council. (Laws of 1835, p. 136, § 4.) The previous act of the same day amending the charter of the city of Brooklyn, which went into effect immediately, must be so construed as not to conflict with the provisions of the act appointing these commissioners to make a permanent plan of this part of the city. It must therefore be construed to apply to that part of the city lying within the first five wards, and which was originally comprised within the bounds of the village corporation ; or at least, to such streets as they should think proper to lay out according to a settled plan, in the four other wards, previous to the time when the act for the appointment of commissioners should take effect. Certainly it could not have been the intention of the legislature that two classes of officers should have the power to lay out streets and avenues in that part of the city during the same period, and that each should proceed according to a settled plan of their own. Neither could the mayor and common council continue their jurisdiction over the subject, (if their power extended to these four wards previous to the first of September,) by their neglect to apply to the governor for the appointment of commissioners until after this street was laid out; if such was in fact the case. The duty for which the commissioners were to be appointed was in its nature exclusive ; independent of the express provisions of the act upon that subject. And until they had been appointed and had authorized the opening of the street now under consideration, I am satisfied the mayor and common council had no authority, after the first of September, 1835, to proceed by resolution to open the same, and to have commissioners of estimate and assessment appointed pursuant to the directions of the act of 1833.

The vice chancellor was therefore authorized to interfere by injunction to restrain the defendants, under color of authority, from proceeding in an illegal act, which must necessarily cast a cloud upon the complainant’s title ; and to set aside these unauthorized proceedings which had already taken place. (Oakley v. The Trustees of Williamsburg, 6 Paige’s Rep. 262. Pettit v. Shepherd, 5 Idem, 501.) For these reasons, the order appealed from must he affirmed with costs.


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    Rogers, appellant, v. King and others, respondents.

    The surrogate by whom Ictteis testamentary or of administration were granted, has concurrent jurisdiction with the court of chancery, to- call the executor or administrator to account. The pendency of a suit in chancery therefore, by one creditor for an account, if the suit has not proceeded to a decree, is no bar to a proceeding instituted before the surrogate by another creditor for an account.
    But if the same creditor, who has filed a bill in chancery against the executor or administrator for an account, afterwards cites him to account before the surrogate, the pendency of the suit in chancery may be set up before the surrogate, in the nature of a plea in abatement; and will constitute a valid objection to the proceedings there.
    After a decree for an account has been made in the chancery suit, for the benefit of all persons interested in the estate of the decedent, such decree will deprive every such person of the right to proceed before the surrogate for an account. And, upon a proper application, the court of chancery, after such decree, will grant an injunction, as a matter of course, to stay all per-y sons from proceeding for an account before the surrogate and to compel them to come in and establish their claims under the decree.
    April 7.
    This was an appeal from a decision of the surrogate of the city and county of New-York. The respondents, who, as the executors of the will of their deceased father, were creditors of the estate of A. Gracie, deceased, cited the appellant, N. Rogers, as the surviving executor of the will of the last mentioned decedent, to account before the surrogate pursuant to the directions of the statute. The appellant appeared before the surrogate and opposed the accounting, upon the ground that A. Hosack and J. Blunt as executors of A. Hosaclc, deceased, another creditor of A. Grade’s estate, had filed a bill in this court against the appellant for an account of his administration of the estate of his testator ; to which bill the respondents had been made parties as defendants. And he also produced before the surrogate the proceedings in that suit before the vice chancellor, and the decisions of the chancellor and of the court for the correction of errors in that suit; as the same are reported in 6 Paige’s Rep. 415, and in 18 Wendell's Rep. 319. The surrogate, however, decided that the appellant was bound to account, notwithstanding the objection ; and he made an order accordingly. From which order U. Rogers, the executor of Gracie, appealed.

      J. I. Roosevelt, for the appellant.

      J. Blunt, for the respondents.
   The Chancellor.

The surrogate has concurrent jurisdiction with this court to call an executor or administrator to account. And if the same party who files a bill in this court against such executor or administrator subsequently cites him to account before the surrogate, the pendency of the suit here, for the same object, ought to be allowed by the surrogate as a valid objection to the proceeding there 5 in the nature of a plea in abatement. And where, in a suit properly instituted in this court, by any other creditor, legatee, or distributee of the estate, a decree for an account has been entered, for the benefit of all the creditors and other persons interested in the estate, such decree may be set up as a bar to any proceeding for an account before the surrogate. And this court, upon a proper application, would grant an injunction, as a matter of course, to stay any creditors or others from proceeding before the surrogate, and to compel them to come in and establish their claims under the decree here. (Moore v. Prior, 2 Young & Coll. Rep. 375. Paxton v. Douglass, 8 Ves. 520. Perry v. Phelps, 10 Idem, 39. Clarke v. Ormond, Jacob’s Rep. 122.) Although the respondents are made parties to the suit against the executors of Grade in this court, they are parties defendants; and the complainants in that suit, at any time before a decree for account, might deprive them of any benefit thereof by dismissing the bill. In analogy, therefore, to the established right of different creditors to proceed simultaneously, against the executor or administrator, in the same or different courts of equity, until a decree has been made in one of the suits, so that all may come in under the decree, the simple institution of a suit by one creditor in this court is not a sufficient ground for the surrogate to refuse the application for an account before him by another creditor. The decision of the surrogate in this case was therefore correct; and the order appealed from must be affirmed with costs. But as there is now a decree for an account, in the case which was pending before the vice chancellor at the time when these proceedings before the surrogate were instituted, the further proceedings in this matter, except for the collection of those costs, will be stayed of course ; and the respondents will be permitted to come in under that decree and participate in the taking of that account before the master.


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    Vechte vs. Brownell.
    Where the owner of land, who had agreed to give to his tenant a lease in fee at a specified rent, was attainted, and his interest in the premises was sold by the commissioners of forfeitures, subject 1o the equitable right of the tenant to the lot upon the payment of such rent; Held, that the interest of the purchaser in (he premises was in the nature of a rent seek, and that such rent could be distrained for under the provisions of the revised statutes.
    The remedy by distress for the recovery of retit in arrear is .not limited to six years. The landlord is therefore authorized to distrain for all the rent in arrear, although it exceeds that time. But he cannot distrain for interest on the rent.
    Where the purchaser of leasehold premises is indemnified by the vendor against the payment of rent admitted to be in arrear at the time of his purchase, if the vendor refuses to pay such rent, the vendee may pay the same and resort to his indemnity; as he is not bound to wait until his property is distrained and sold by the landlord to satisfy such rent.
    Where the mortgagee was proceeding, upon a statute foreclosure, to sell the mortgaged premises for a much larger sum than was actually due on the mortgage, and the mortgagor filed a bill in chancery to restrain such sale, without having tendered or offered to pay what was legally and equitably due, the court refused to allow costs to either party as against the other.
    April 7.
    This was an appeal from a decree of the late vice chancellor of the fourth circuit, granting a perpetual injunction, restraining the defendant from proceeding to foreclose a mortgage given to him, under the following circumstances :
    Previous to the revolution, Sir William Johnson, who was the owner in fee of lot No. 160 in the western allotment of the Kingsborough patent, containing about 113 acres, agreed to lease the same in fee to the father of the complainant, at the annual rent of $15. But previous to the execution of any lease therefor Sir William Johnson died, and the lot became the property of his son Sir John Johnson, subject to that agreement. Sir John was attainted for adhering to the enemies of the state, and his property was confiscated. The commissioners of forfeitures being satisfied that the complainant’s father was entitled to the lot in equity, subject to the annual rent, gave him a certificate to that effect, and received the arrears of rent up to the 25th of September, 1785, and sold the future rents of the lot to Aaron Thompson. The complainant’s father remained in possession of the lot and paid the rent thereof to Thompson until 1800 ; when he sold and conveyed the lot to his son, the complainant, subject to the rent. The comp'ainant continued to pay rent to Thompson until the latter died, and after that he paid it to his son Aaron Thompson the younger, until the first of January, 1817 ; after which time the latter went into some one of the western states to reside, and did not return to demand payment of the rent until 1830.
    In 1803 the complainant sold and conveyed 16 acres of the lot to J. Monro, free of rent; by which the residue of the lot became primarily liable for the whole rent. And on the second of April, 1823, he sold 40 acres to P. Heacock free from rent up to that time, but subject to the payment of the future rents upon that 40 acres, in proportion to the whole lot. And on the 15th of September, 1827, he sold and conveyed to J. Brownell, the defendant, the remaining 57 acres of the lot, subject to the rent which should thereafter accrue. But he agreed to indemnify the purchaser against all previous rents ; telling him at the same time that the rent in arrear, including the arrears of rent on the forty acres, then amounted to about $250 ; that Aaron Thompson the younger, to whom the rent had been paid subsequent to the death of his father, had gone into the western states; and that in his opinion he was dead, and that the rent would never be called for. The defendant, however, refused to purchase without an indemnity against the arrears of rent. The complainant thereupon gave to him a bond and mortgage upon another piece of land, conditioned for the payment of $250 on demand, with interest. And the defendant gave to him a written stipulation, reciting the conveyance of the 57 acres to the defendant and that there were arrears of rent due thereon, and the giving of the bond and mortgage as an indemnity against the rent or any judgments which might be a lien upon the premises conveyed, and agreeing that the bond and mortgage were not to be enforced except for the indemnity of the defendant against such arrears of rent, and the interest due thereon, or any judgments which might be a lien upon the premises. The defendant upon the same day purchased of Heacock the 40 acres which had previously been conveyed to him.
    In September, 1830, Aaron Thompson the younger returned and demanded payment of the arrears of rent of the defendant, who finally paid him $260 for the arrears of rent from the first of January, 1817; to which time the complainant stated, and produced Thompson’s receipt to show that the rent had been paid. The defendant also bought of Thompson the future rent and reversion of the land for $200, and took his release of the premises. Previous to the final settlement for the arrears of rent, the complainant called upon the defendant and forbid his paying for more than six years arrears of rent; but refused to indemnify him against the cost to which he might be subjected to recover the arrears. A few days after this settlement the defendant advertised the mortgaged premises for sale, as upon a statute foreclosure, stating the amount due to him for principal and interest, on the 5 th October, 1830, to be $303,46 ; which was the nominal amount of the bond and mortgage, with interest thereon from its date. The complainant subsequently filed his bill in this cause, a few days previous to the time appointed for the sale of the mortgaged premises, and obtained an injunction to stay the defendant’s proceedings. And upon the hearing of the cause, upon pleadings and proofs, the vice chancellor made a decree for a perpetual injunction, and ordered the defendant to pay the costs of the suit.

      M. T. Reynolds, for the appellant.
    The rent since 1817 being justly due, the defendant had a right to settle and pay the same and resort to his indemnity. The landlord could have distrained for the entire rent due, and therefore he was compelled to pay it, and having paid it, he can resort to his indemnity. The defendant at least has a right to claim the rent due from 1817 without interest, and the complainant not having tendered that sum, the decree should be to sell for that sum, with interest and the costs of advertising, and of this court.

      Daniel Cady, for the respondent.
    The mortgage mentioned in the complainant’s bill was given by him to indemnify the defendant against any rent or other incumbrance then on the land sold by the complainant to the defendant; and as the defendant has not shown that he was compelled or could have been compelled to pay the rent, he has no right to foreclose the mortgage. The complainant is entitled to a decree for a perpetual injunction against any proceedings to foreclose the mortgage mentioned in the bill, and for the cost of this suit. (Van Slyck v. Kimball, 8 John. Rep. 198. 2 Chitty’s Pl. 88, 138.) If it be supposed that Thompson might have distrained for the rent, and that the possibility of such distress authorized the defendant to foreclose the mortgage, the remedy by distress was barred by the statute of limitations, except as to the rent of five years which had accrued next before the payment was made to Thompson.
   The Chancellor.

As I have not been furnished with the reasons of the decree of the court below, it is difficult for me to conjecture upon what grounds the decision of the vice chancellor was based. The effect of the decree, as admitted by the counsel of both parties upon the argument, although I have not been furnished with a copy so as to enable me to judge of its particular terms, is to restrain the appellant from even proceeding upon his mortgage to recover any part of the arrears of rent which he paid to Thompson in September, 1830. I presume, therefore, the vice chancellor must have concurred with the complainant’s counsel in his first point, that the defendant had not been compelled, and could not have been compelled by Thompson, to pay any part of the arrears of rent which had accrued previous to the conveyance to him in September, 1827. In the peculiar situation of this title there certainly might be seme difficulty in proceeding at law to collect the arrears of rent which became due, while the premises were occupied by another tenant than the one against whom the proceedings were instituted, in case no distress could be found upon the premises. For the grant to A. Thompson, and his heirs, appears to have been an interest in the nature of a rent seek, without any provision for a re-entry for non-payment of rent. The object and intent of the commissioners of forfeitures undoubtedly was to sell all the interest of the state, which had accrued by the attainder of Johnson, subject to the incumbrance of such a lease as Vechte was in equity entitled to receive. And indeed such was their duty under the statute. In case of any real difficulty at law, therefore, in enforcing the payment of the rent, it probably would be the duty of this court to put the present owners of the land, and of the rent, in the same situation, as if a lease had been actually given by Sir William Johnson to the complainant’s father, instead of a mere agreement for a lease. And if necessary, after such a lapse of time, the execution of an actual lease from the elder Thompson to Vechte, reserving, rent, might be presumed ; so as to give the landlord the usual remedy, by distress for the recovery of such rent, or the summary remedy by an application to a judge, if no sufficient distress could be found upon the premises. (See Collet v. Jaques, 1 Chancery Cases, 120.) I think, however, that it was not necessary in this case that the heir of the grantee of this rent should even have resorted to a court of equity for a remedy, to compel the defendant to pay all the arrears of rent which were actually due and unpaid. (Blake v. De Lesseline, 4 M’Cord’s Rep. 496.) By the 18th section of the title of the revised statutes relative to the rights and duties of landlords and tenants, &c. (1 R. S. 747,) it is expressly provided, that when any certain services or certain rent, reserved out of any lands or tenements, shall not be paid or tendered when due, the person entitled thereto may distrain for the same. And the note of the revisers, to this section, shows that it was intended by this provision to extend the remedy by distress to every kind of rent which was fixed and certain as it was extended in England by the 5th section of the act, 4 Geo. 2d. ch. 28, which had not before been adopted here. (See 4 Evans’ Stat. 168. 3 Kent’s Com. 461. 3 R. S. 2d ed. p. 600.) The owner of the rent therefore having a perfect right to distrain for the same under this statutory provision, the defendant was not bound to wait until the property was distrained and sold to pay these arrears of rent. Neither was it his duty to relinquish the use of the farm, in order to prevent the property he might put thereon from being placed within the reach of a distress warrant. It is then perfectly immaterial whether at the time of the settlement he had any property on the land, or not, which could then have been distrained.

It was admitted by both parties that the elder Thompson was dead, and that the person who received the rent after his death, was his son ; nor was there any evidence that he had any other children or descendents living at the time of his death. And it did not lie upon the defendant to prove negatively that the original grantee of the rent did not make a will, devising the rent to a stranger to his blood. This, in the absence of all proof that any other person .had any interest in this rent, was sufficient to show that it had been paid to the right person. Indeed, the payment of the rent originally to him, by the complainant, previous to 1817, was of itself a recognition of his right. And the allegation that he claimed to receive it as agent of his mother, is not supported by any proof; nor by the production of the receipts, in the hands of the complainant, showing that it was receipted for in the character of agent only. If he received any part of the rent as the agent of his mother, it was probably that part of it which accrued before his father’s death, and which, therefore, might have belonged to her as the personal representative- But the subsequent rent belonged to the heir. The defendant in his answer also states that the complainant told him that Thompson, to whom it was paid, was the owner of the rent, and the proper person to settle with for the same. And this part of the answer is responsive to the interrogatory in the bill, which called upon the defendant to state whether Thompson showed any, and what title to, or authority to receive the rent. There is no foundation for the objection that the grantee of the rent could not recover the arrears thereof for more than six years. Even if the only remedy for the recovery thereof was by an action of debt, as upon simple contract, or an action for use and occupation, the facts in this case show that the remedy would not have been barred ; for there was such an admission that the rent remained due and unpaid, as would have been sufficient to take the case out of the statute of limitations. At the time the complainant sold to the defendant, it was conceded that the rent had not been paid or demanded for many years previous ; and, according to the testimony of Stewart and of Haring, only up to 1817. The mortgage itself, which the defendant took, was given as an indemnity against these admitted arrears; which are in terms referred to in the writing executed at that time to show the purposes for which the bond and mortgage were given. .Besides, there was no statute that I am aware of, which limited the distress for arrears of rent to six years. Chancellor Kent says, the distress may be made for all the arrears of rent arising during the tenancy, though the rent of several years should happen to be in arrear. (3 Kent’s Com. 2d ed. 483.) And certainly that was the law of England, until the recent statute, (3 and 4 Wm. 4, ch. 27, § 42,) enacted in pursuance of the recommendation of the real property commissioners, restrained the collection of rents, either by distress or suit, after six years from the time when the same became due except upon a written admission that the rent was due and unpaid. (1 Flintoff’s Law of Real Pr. 40.) For these reasons I have no doubt that the defendant was right in supposing that Thompson, the owner of the rent, had a perfect remedy against him, by distress, to recover the arrears from the first of January, 1817 ; and that he is entitled to recover upon his bond and mortgage, so much as the complainant was justly chargeable with, and the interest thereon from the time such rent was paid to Thompson on the 28th of September, 1830. The decree appealed from was, therefore, clearly erroneous, and must be reversed.

I think the defendant however wag wrongly advised, if he supposed he was liable for or could in any way be compelled to pay interest upon the arrears of rent which had become due and payable before he purchased the premises from Vechte in September, 1827 although from the writing which Brownell gave to Vechte, showing what was the object and intent of the mortgage, it is .evident both parties then supposed the land was chargeable with inter est, as well as with the rent itself. Here was no privity of contract between the defendant and Thompson, as the owner of the arrears of rent, which could have enabled the latter to bring any action against him for the rent which accrued before his purchase; so as to have enabled the jury to give interest by way of damages for the non-payment of the rent upon the several days when it fell due. And when the owner of the rent proceeds by distress, to recover the same, he is not entitled to distrain for interest thereon; especially in a case where there is no agreement that the tenant shall pay interest, and that the landlord may distrain for that as well as for the rent itself. In Sherry v. Preston, (2 Chitty’s Rep. 245,) which was an action of replevin brought against the landlord Tor distraining upon the plaintiff’s goods for the rent, after he had agreed to pay interest on the arrears to the defendant, Mr. Justice Buller says, “ The defendant could not distrain for the interest, but he had a right to abandon the interest, and take a distress for the rent.” Nor would a court of equity, under the circumstances of the present case, have interfered in favor of Thompson for the mere purpose of giving him interest upon his arrears of rent, if he had no remedy at law, as against Brownell or his property. He had been absent for ten years, without leaving any agent in the neighborhood of the premises who was authorized to receive the rent, which had not been demanded during that time. The legal presumption, therefore, was that the tenant was at all times ready to pay the rent as it became due, if it had been called for ; and here was no express agreement to pay the rent on a particular day, so as to render a formal tender of the rent upon the land necessary to prevent the claim for interest from attaching to the debt.

The rent for which the complainant was liable under his agreement, he having sold the 16 acres to Monro free of rent, was the rent upon the whole lot from the 1st of January, 1817, to the 2d of April, 1823, when he sold the 40 acres to Heacock free of rent up to that day ; and t7^ of the rent of the lot from that time until the 15th of September, 1827, when the defendant purchased under the agreement for an indemnity against all rent which had previously accrued, and for which the lands conveyed to him were liable. The terms of the stipulation are broad enough to cover the arrears upon the 40 acres, if the defendant’s lands, which were conveyed by the complainant and wife to him, had in fact been charged with the whole arrears. But as the 40 acres were primarily liable for Heacock’s proportion of the rent from April, 1823, the defendant, who was himself the purchaser of that part of the lot also, had no right to resort to the bond and mortgage for that portion of the arrears of rent, even if Heacock had been unable to refund the same.

As the defendant claimed more than he was entitled to under his statute foreclosure, I shall make no provision to pay him the expense which he incurred by advertising. And if the complainant had been willing and had offered to pay him what he had a legal right to demand, and he had still persisted in selling the property for the purpose of raising a larger sum, to which he was not entitled, the complainant would have been justified in filing this bill to stay the sale; although he would have had a perfect remedy at law to recover back the proceeds of the sale beyond the amount actually due. It is evident, however, from the whole case, that the complainant did not intend to carry into effect his agreement, in good faith, in relation to the arrears of rent; and that he meant to drive the defendant to protect his rights by expensive and useless litigation, knowing himself to be insolvent and irresponsible. I shall not therefore give costs to either party upon the proceedings previous to this decision provided the amount for which the complainant was liable, as above declared, together with the interest thereon from the 28th September, 1830, when the arrears of rent were received by Thompson, are paid to the defendant or his solicitor within three months after the service of a copy of the decree to be entered hereon. But if the amount is not paid within the time prescribed, the complainant’s bill is to be dismissed with costs, including the defendant’s costs on this appeal.