text:
    Dodge vs. Manning.
    Where B., by his will, devised his real and personal estate to his wife for life, with ■ remainder to his grandson X B. when he should arrive at the age of 21; and the testator in his will gave to his daughter C. $250, to be paid by X B., out of his estate, one year after he should arrive at the age of 21; and J. B., after he was of age, upon the death of the testator’s widow in 1832, came into possession of the real and personal estate devised and bequeathed to him; and J. B. and P. B. mortgaged the real estate devised to X B. to' G., to secure the payment of $6000 ; and that mortgage was foreclosed in chancery and the mortgaged premises sold under the decree, in July, 1834; at which sale M. N. and O. purchased three several parcels of'the premises, and J. B. another parcel; and at the sale J. B. and the legatees, named in the will, gave notice to the bidders that the legacies were unpaid and were liens upon the premises; which claim was resisted by the counsel of the mortgagee, but it was not made a part of the terms of the sale that the purchasers should pay the legacies; and C. subsequently filed her bill against the purchasers of the real estate for the recovery of her legacy; Held, that the purchasers at the master’s sale took the property subject only to such equitable claims as would have existed against it, if the mortgagee himself had become the purchaser, without any other notice of the claims of the legatees than he had at the time of the execution of the mortgage.

      Held also, that the legacy bequeathed to C. was an equitable lien upon all the real estate devised to J. B.; but that the personal estate bequeathed to J. B. was the primary fund for its payment; and that C. could not resort to the real estate, in the hands of the purchasers at the master’s sale, for the payment of her legacy, unless the personal estate had been exhausted in the payment of the debts of the testator, or those who were accountable for it were irresponsible.

      Held further, that the giving of the mortgage to G., by J. B., was an acceptance of the devise ; and that J. B., by his acceptance of the devise, became personally liable for the payment of the legacy of C.

      Held also, that C. could have commenced a suit to charge the real estate devisedV to J. B. with the payment of her legacy, at the end of one year after J. B. became t 21, without waiting for the termination of the life estate of the widow ; and that * the interest of J. B. in the estate, might have been sold under a decree, for the pay-/ ment of the legacy, subject to the life estate of the widow. ’

    It seems, also, that as a part of tire real estate devised to J. B. was revested in bint, by his purchase at the master’s sale, in the same manner as if it had never been included in the mortgage, such part, as between him and C., was primarily liable for the payment of the legacy of C., in exoneration of those portions which were sold to other persons under the decree of foreclosure.
    The admission of a husband, made during the coverture, that he had received payment of a legacy bequeathed to his wife, is evidence of such payment, in a suit for the recovery of the legacy, commenced by her after his death; the husband, du-ing his life, having the right to receive payment thereof.
    This was an appeal by Manning, Boyd and Becker, three of the defendants, from a decree of the vice chancellor of the fourth circuit. J. I. Becker, the grandfather of the complainant, died in January, 1805. By his .will, he devised a part of his real estate to his daughter 'Caty Borst. And all the residue of his estate, real and personal, he devised and bequeathed to his wife for life; with remainder to his grandson, J. B. Borst, when he should have arrived at the age of twenty-one. The testator also gave and bequeathed to the complainant $250, to be paid by his grandson J. B. Borst, out of his estate, one year after he should arrive at the age of twenty-one. He also gave to three others of his grandchildren, legacies of $250 each, to be paid by J. B. Borst in two, three and four years after he should arrive at that age. J. B. Borst became of age in September, 1820; and came into possession of the estate devised and bequeathed to him, by the death of the testator’s widow, in February, 1832.
    In September, 1826, J. B. Borst and wife and Peter Borst, mortgaged the real estate which the testator devised to J. B. Borst, consisting of four parcels of land in the county of Scho-harie, to George Maxwell, to secure the payment of $6000. That mortgage was foreclosed in chancery, and the mortgaged premises were sold under the decree, in July, 1834. At such sale the defendants Manning, Boyd, and Becker, each became a purchaser of one of the parcels of the land thus mortgaged ; and J. B. Borst, who by the will of the testator was charged with the payment of the legacies, and who was one of the mortgagors, became the purchaser of the other parcel. At the sale, J. B. Borst and Peter Borst gave notice to the bidders that the legacies were unpaid, and insisted that they were a lien upon the mortgaged premises ; which claim was resisted by the counsel for the mortgagee. But the bidders were left to understand that they would take the premises subject to any legal or equitable incumbrance which could properly be charged thereon, by the legatees, as against the mortgagee. It was no part of the terms or conditions of the sale, however, that the purchasers should pay the legacies or any part thereof; but the purchasers were to take such interests in the premises as the master was authorized to convey, under the decree.
    In 1835 the complainant filed her bill in this cause, setting forth the above facts, and claiming that her legacy was still due and unpaid ; ‘ and insisting that it was an equitable lien upon the several parcels of the mortgaged premises, in the hands of the purchasers under the decree of foreclosure. The three defendants, who were the appellants in this case, put in their answer upon oath, denying that they purchased the premises subject to the payment of the complainant’s legacy. They also insisted, in their answer, that J. B. Borst having accepted the devise and bequest to him in the will of the testator, he became personally liable for the payment of the legacies; and that the complainant’s legacy, if not paid, was an equitable lien upon the part of the devised estate which he bid in at the master’s sale; which part of the devised premises should be first resorted to for payment. But they insisted that the several parcels of the premises which were purchased by them, were not subject to the lien of the legacy, even if it had not been paid. These three defendants also set up, as a defence, that the legacy had been paid to the husband of the complainant, in his lifetime. They also stated that the testator left about $1300 in" personal estate, at the time of his death, as appeared by the inventory filed by the executors; which inventory was subsequently produced in evidence, and established that fact. J. B. Borst was allowed, by the complainant, to put in his answer without oath, although an answer on oath was not waived by the bill.
    The cause was heard upon’ pleadings and proofs, before the vice chancellor. He decided and decreed that the legacy of the complainant was a lien upon the several parcels of land, in the hands of the defendants, as purchased by them respectively under the decree of foreclosure; and that the legacy, with interest thereon from the time it became payable, in September, 1821, together with the complainant’s costs in this suit, should be apportioned among the defendants, in proportion to the amount of their several bids at the sale under the decree. He therefore directed a reference, to a master, to compute and apportion the amount of th'e legacy, with interest and costs, accordingly; and decreed a sale of their several parcels for the payment of the amount, which should be reported as chargeable to each, upon the coming in and confirmation of the master’s report.

      H. Hamilton & M. T. Reynolds, for the appellants.
    The legacies mentioned in the will of John I. Becker are not a charge on his real estate, in the hands of a purchaser for a valuable consideration. Should the court be of opinion, that the legacies are a charge on the real estate, in the hands of a purchaser for a valuable consideration, still the personal property must first be exhausted, before the real estate can be made liable. The personal estate is primarily liable. (Lupton v. Lupton, 2 John, Cas. 628.) The personal property of John I. Becker, the testa-top, amounted to |1326,50, sufficient for the payment of all the legacies, and must be first .applied, before the real estate can, in any event, be made liable; it not appearing that the testator owed any debts at the time of his death. The defendant John B. Borst, having accepted the devise and bequest made to him by the testator, in and by the said will, became personally liable for the payment of the said legacies. And having mortgaged said premises absolutely, and not as being subject to the said legacies, the other defendants, Manning, Boyd and Becker, cannot be made liable for the, payment of the legacies, or any part thereof, so long as John B. Borst is able to pay them. The decree of the vice chancellor, at least, ought to have directed so much of the premises as was purchased by John B, Borst, at the master’s sale under the Maxwell mortgage, to be first sold, and the proceeds applied to the payment of the legacies in question, before the parcels purchased by the other defendants were made liable. The defendants, Manning, Boyd and Becker, by their purchase at the sale under the Maxwell mortgage, acquired the same rights that Maxwell would have acquired, had he been the purchaser. And there being no proof ofnotice to Maxwell, of the non-payment of the legacies,.at the time of the execution of themortgage, his rights could notbe prejudiced by any subsequent nptice. After a lapse of more than thirty years, the, evidence will justify the conclusion that the legacy to the complainant has been paid to her, or to her husband Daniel D, Dodge, in his lifetime. And the bill is filed in this case, not at the instance of or for the benefit of the complainant, but at the instance and for the benefit of her brothér, the defendant John B. Borst, and with a view to defraud his co-defendants, Manning, Boyd and Becker, (Arden v. Arden, 1 John. Ch. 316,)
    A. C. Paige, for the complainant.
    The complainant’s Jegacy. is,an equitable charge, on the lands devised to John, B. Borst, and the charge binds and is a lien upon the lands, in the hands of the defendants. (Harris v. Fly, 7 Paige, 421. Alcock v. Spar-hawk, 2 Vern. Ch. Rep. 228. Clowdslyv. Pletham, 1 Id. 386, yr. 1686. Aubrey v. Middleton, 2 Eq. Cas. Ah. 497, case 16. Elliot v. Hancock, 2 Vern. Ch. 143, yr. 1690. Syphet v. Carter, 1 Ves. sen. 499. Hassell v. Hassell, 2 Dick. Ch. Rep. 527, yr. 1776. 2 Story's Eq. 493,494, §§ 1246,1247, and note 2, p. 494. Glen v. Fisher, 6 John. Ch. 38. • Birdsall v. Hewlett, 1 Paige, 32.) Legacies are an equitable charge on the land, although the devisee, by accepting the devise, becomes personally liable. (1 Paige, 408. 1 Roper on Leg. 452. Henville v. Whitaker, 3 Russ. 343. Dover v. Gregory, 10 Sim. 393. Graves v. Graves, 8 Id. 54. Kelsey v. Deyo, 3 Cowen, 141.) The estate for life, of the widow, in the real and personal estate, was exempt from the charge of the legacies. The personal -property, as well as the real estate for life, was exonerated; this was the intent of the testator. Real estate may be generally charged with debts and legacies, with the exception of a particular interest, limited in the whole or part of the estate, where the intention of the testator is clearly in favor of such exemption. (1 Roper on Leg. 453. Birmingham v. Kerwan, 2 Scho, & Lef. 444,448, per Ld. Redesdale.) Where the real estate is combined with the personal, and both are made to constitute one fund, the former will be liable to all the burdens of the latter. (Bench v. Biles, 4 Mad. Ch. 187. 1 Roper on Leg. 450. Kidney v. Cbussmaker, 1 Ves. jun. 436. • 2 Id. 257. Carey v. Carey, 2 Scho. & Lef. 188. 1 Roper on Leg. 452. Webb v. Webb, Barnard. Rep. 86.. Harris v. Flu. 7 Paige, 421.)
    The legacies must be paid out of the real estate, in exoneration of the personal property; as the former was purchased subject to the payment of the legacies, notice having been given at sale; and at a diminished price paid, in consequence thereof.
    And as John B. Borst united in the notice at the sale, the real estate is now the primary fund for the payment of the legacies; and the personal estate is exonerated and discharged. (1 Roper on’Leg. 463, 466, 470. Samuel v. Wake, 1 Pro. C. C. 144. Hartley v. Hurle, 5 Ves. 540. Meriv. 236. Greene v. Greene,
      4 Mad. Gh. 148. Burton v. Knowlton, 3 Yes. 107, 109. 1 Roper on Leg. 474, 484. 1 Bro. C. C. 462. 4 Yes. 823. 9 Id. 454. 1 Meriv. 219, 220. 7 Paige, 421. 2 John. fJh. 614. 3 Mad. 56. Eber v. Fisher, 6 John. Ch. 33.) As between the complainant and these defendants, the ordinary questions as to •which is th.e primary fund, and which the secondary fund for the payment of these legacies, or which fund is to be first applied in payment, and which, if either, is auxiliary to the other, do not arise. If there had been^ any personal fund which came to the hands of the devisee, applicable to the payment of these legacies, as between certain parties, viz. a bona fide purchaser of the real estate without notice, and John B. Borst, or his personal representatives, or perhaps the legatee, or as between the heirs at law and personal representatives of John B. Borst, these questions might have arisen'; and in such cases, no doubt, the personal estate must have been first applied. But here, if the personal estate formed any part of the charged, blended fund, real and personal, the blended fund belonged to John B. Borst; and he chose (he had a right to do so,) to cast the whole burden, on the real estate (one part of the fund.) At the sale, Borst was present when the notice was given; and at one time gave the notice himself that the legacies were a charge on the real estate. And he assented to the notice of Peter I. Borst, that they were to be paid out of the real estate. The defendants purchased with this notice. They, therefore, purchased subject to the payment of these legacies; as clearly as if they had taken a conveyance expressing on its face that it was subject to them. The owner of real and personal estates may stamp on them what nature he pleases. As where a man purchases land subject to a mortgage, he may, or he may not, as he pleases, adopt the mortgage debt as his own; so as to subject his personal assets to the burden of discharging-it, in exoneration of his real estate. s (1 Roper on Leg. 495, 489.)
    There was no personal estate in the hands of John B. Borst, applicable to the payment of the legacies. The answer avers none. It avers merely that John I. Becker was, at the time of his death, possessed of personal property, consisting of horses, cattle, sheep, swine, implements of husbandry, household furniture, negro slaves, and .wearing apparel. The answer does not aver that any of this property remained at the death of the widow.' She-had a life estate in it; which estate was exempt from the charge. The inventory of the testator’s personal property is proved. From that, it will be seen, that there could have been no personal estate, of any value, at the death of the widow. The slaves became free in 1824 or 1825. 'The horses, cattle, sheep and swine, were worn out and dead. The increase did not go to the remainderman. The implements of husbandry, after a usé of 27 years, must have been worn out and valueless; so, also, of the household furniture and wearing appafel; and out of this property, the funeral expenses and debts were to be paid. The proofs, therefore, show a deficiency of personal estate to pay the legacies. The allegation in the answer is insufficient as to personal estate. It should have averred, and the defendants should have proved, that personal property came to the possession of John B. Borst. It was not necessary to aver in the bill ■the insufficiency of personal property. If such averment was necessary, the defendants should have demurred. Again, the answer does not aver that the testator died possessed of personal estate sufficient for the payment of his debts, or that any remained, after the payment of the debts, to be applied to the payment of these legacies.
    It was not necessary to give Maxwell notice cf the charge. He was only a mortgagee. His mortgage was merely a specific lien — a security for a debt. The property mortgaged was subject to the legacies. It was an adequate security for Maxwell’s debt. But he had constructive notice that the legacies were a charge, being compelled to make title through the will of John I. Becker; and the defendants had both actual and constructive notice of such charge. A purchaser deriving title through a will, and thereby having constructive notice of its contents, takes the estate devised, subject to the equitable claims of legatees, where legacies, by the will, are charged on such estate. (Harris v. Fly, 7 Paige, 427.) The defendants, however, have not set up, in their answer, .that Maxwell was a bona fide mortgagee, without notice of the equitable claims of the legatees. This was necessary to protect themselves as bona fide purchasers.. (Harris v. Ply, 7 Paige, 42f.)
    Although the defendant John B. Borst, by accepting the devise, is personally liable to complainant, the lands are nevertheless charged, and the complainant can, and under the circumstances, is obliged to resort to them first for payment The equities as between J. B. Borst and the defendants, require that the lands should be first resorted to.
    The defendants having had notice of the legacy, are liable to the payment of such legacy; with interest and costs. Refusing to pay, when called on, subjects them to costs. And such costs are a charge on the real estate. (1 Paige, 32,407.) Interest is payable on a legacy from the time it is due; and where the legacy is a charge. on real estate, the interest is a charge also. The answer admits that the legacy (if not paid,) with interest thereon from the end of one year after J. B. Borst came of age, is due to the complainant. Interest on. a legacy is payable although not demanded. Costs also are recoverable, although there has been no demand, (Glen v. Fisher, & John. Ch. 38. Freeman v. Simpson, 6 Sim. 75.)
    There'is no evidence of the payment of the complainant’s legacy. H. Manning is the only witness on the subject of payment. He swears only to the declarations of the complainant’s husband. These, if admissible in evidence, do not make out payment. The whole evidence consists of declarations of Dodge, “ that he bad settled off with John B. Borst.” The legacy of the complainant was not mentioned during the conversation. That Dodge referred to the legacy, was, therefore, only the inference of the witness. This conversation was two or three years before Dodge’s death, and previous to the death of the testator’s widow. And it was before the time the parties had reason to suppose, and probably did suppose, that the legacy was to be paid, which was at the death of the widow; as John B. Borst was to pay it out of the estate. He could not well pay it out. 'of the estate before he came into the possession of such estate. There is, therefore; no reason to suppose that Dodge, in the settlement to which he alluded, referred to the legacy of the complainant. • This. legacy Dodge could not have received, if the complainant objected, without making a provision for her. (5 John. Ch. 196. 7 Paige, 633. 4 Id. 64. 2 Kents Com. 139. 2 Story’s Eq. Juris. § 1414. 6 Paige, 366. * 6 John. Ch. 25. 5 Id. 464.) It is improbable that John B. Borst would pay this legacyj before he received the property out of which it was to be paid. And it is improbable that Dodge should have claimed it before that time. Dodge had no right to collect it without his wife’s consent. He could not have maintained an action at law for it; the legacy being a charge on both real and persona] property. (6 Cowen, 333.) The admission by John B. Borst, in his answer, that this legacy is still due, confirms the position that the legacy has never been paid. But the declarations of Dodge are inadmissible, as evidence against the complainant. They were objected to. Husband and wife cannot be witnesses for or against each other. (1 Phil. Ev. 77. 2 Cowen & Hill’s Notes, 1654.) A wife, after a husband’s death, cannot disclose his conversations. (2 Cowen & Hill’s Notes, 1555. 7 Verm. P. 537. Peake’s Cas. 219, 221.) A widow cannot be asked to disclose conversations, between herself and her late husband. (Boker v. Hasler, 1 Ryan & Moody, ^98, 'per Best, C. J.) A woman, after a divorce, cannot testify to conversations with her husband during the existence of the marriage. (Munsal v. Twisleton, Peake’s Ev. App. 44, per Ld. Alvanley.) So where the wife is a sole- party, claiming in her own right, and under right paramount to her husband, his admission is not evidence against her, although made during coverture. (Smith v. Scudder, 11 Ser. & Rawle, 326.) Evidence of declarations of a party is to be scrutinized and received with caution. {Law v. Merrills, 6 Wend. 268, per Chan.) The demand for this- legacy; when the bill was filed, was not a stale demand. The bill was filed within three years after the death of the testator’s widow. The answer seta up neither the staleritess-of the; demand, nor the statute'of limitations- There is no presumption of payment, from lapse- of time. (2 R. S. 301.) Neither lapse of time nor the statute of limitations would bar the complainant’s right to recover her legacy; she having-been a feme covert until November, 1831 or 1832. (1 Paige, 616.) There was no statute of limitations to a charge on real, estate previous to 1830. (7 John. Ch. 115. 2 R. S. 302.)
    The quantity and value of the several portions of the land charged with- the legacy, owned by the defendants, and the amount of the personal estate, if any, applicable to the payment of the legacy, may be ascertained on a reference; and a proper decree may be made on the coming in of such report.
    Even if the personal estate, if any, is the primary fund for the payment of the complainant’s legacy, the defendants, Manning, Boyd, and Becker, as owners of portions of the real estate charged with the legacy, are proper and necessary parties; to the end that the real estate owned by them' may be resorted to for the payment of any deficiency which may remain, after applying, in 'payment of the legacies, all the personal estate; which deficiency can be ascertained on a reference. When a bill is filed to recover a legacy charged on both personal and real estate, all the owners of both the personal and real estate should be made parties; in order that the different classes and portions of such estate, may be resorted to, for payment of the legacy, in the order in which the same are by law charged. The bill should not, therefore, have been dismissed with costs, under any circumstance.

      J. Rhoades, for the defendant J. B. Borst.
    The legacy bequeathed to the complainant, in the will of J. I. Becker, is an equitable charge on the real estate devised to J. B. Borst, and purchased by the defendants, at the sale under the decree in the suit brought to foreclose the mortgage given to George Maxwell. The legacies, given in the will of J. I. Becker,- must be satisfied out of the lands purchased by the defendants, at the sale under the said decree of foreclosure, irrespective and in exoneration of, any personal estate the testator may have left at his death, applicable thereto; inasmuch as such lands were purchased subject to the payment of such legacies. Notice having been given at the sale, that such lands were subject to the said legacies, and that whoever purchased the lands would be required to pay the legacies, and as the law presumes (and such no doubt was the fact) that the defendants, after receiving such notice, purchased the lands in reference to the charge of the legacies thereon, and with the expectation of paying them off; and that they bid a less sum for such lands in consequence of the legacies being such charges. If the defendants are to be regarded, under the said notice, (in giving which the devisee J. B. Borst united) as purchasing the said lands subject to the payment of the legacies, and under an implied agreement to pay them off, and as having obtained such lands at a diminished price in consequence of the legacies being charged thereon, then these lands are now the primary fund for the payment of the legacies; and no resort should be had to either the personal estate, (if any) or to the said J. B. Borst, unless such lauds prove insufficient to pay the legacies.
    There was no personal estate of the testator, which came to the hands of J. B. Borst, out of which the legacies could have been paid. The answer of the appellants does not aver any, and the proof shows none. There was therefore a deficiency of personal assets, and the lands became and now are the only fund out of which the legacies can and ought to be paid. It was not necessary that Maxwell the mortgagee should have had notice that the legacies were a charge on the lands, in order to subject the lands to such charge. A mortgage is only a specific lien — a security for a debt — a chattel interest. But if notice was necessary, the mortgagee, by being compelled to make title through the will of J. I. Becker, had constructive notice of the charges on the lands; and took the mortgage subject to them. And the defendants Manning, Boyd, and Becker, who purchased at the mortgage sale also, not only had actual notice of the charges, but the like constructive notice of them. These defendants having had actual as well as constructive notice that the legacies were charges on the lands, before they purchased, they cannot be protected from the payment of such legacies. (Alcock v. Sparhawk, 2 Vern. 228. Clowdsley v. Plethons, 1 Id. 886. Aubrey v. Middleton, 2 Eq. Cas. Abr. 497. Elliot v. Hancock, 2 Vern. 143. 2 Story’s Eq. 493, 4, §§ 1246,7 ; 499, n. 2. Lypet v. Carter, 1 Ves.

      sen. 499. Hassel v. Ilassel, 2 Dick. 527. Harris v. Fly, 7 Paige, 421. Doker v. Hasler, 1 By. & Moody, 198. 1 Car. & Payne, 364. Smith v. Scudder, 11 Serg. & Rawle, 325. Webb v. Webb, Barnard. Rep. 86. Haslewood v. Pope, 3 P. Wm,s. 322. Dolman v. Smith, Prec. in Ch. 456. Samuel v. Wake, 1 Bro. C. C. 144. Hartley v. Hursle, 5 Yes. 540. 1 Meriv. 236. Greene v.Greene, 4 Mad. 148. LI Yes. 186. 1 Ves. sen. 99. 2 R. S. 297, § 24, sub. 4. Id. 301, 2, §§ 52, 53. Id. 301, § 48.)
   The Chancellor.

There is nothing in the testimony, in relation to what took place at the master’s sale, to make the complainant’s legacy a charge upon the several parcels of the premises in the hands of the purchasers; except as a mere notice to them, that such a claim was made. And if the mortgagor has suffered the mortgaged premises to be sacrificed, by deterring purchasers from bidding, it is the result of his own folly,' and not the fault of the appellants; who will in any event suffer enough in having purchased a lawsuit. All the evidence, therefore, in reference to the value of the several parcels of the premises sold, was irrelevant and improper, and should have been suppressed. The appellants took the property, subject only to such equitable claims as would have existed against it, if the mortgagee himself had become the purchaser; without any other notice of the claims of the legatees than he had at the time of the execution of the mortgage. The defendants, however, have not in their answer, set up as a defence, that Maxwell was a bona fide mortgagee, without notice of the equitable claims of the legatees ; if the legatees had any such' claims.

The case of Harris v. Fly, (7 Paige's Rep. 421,) and the decisions there referred to, settle the principle, that the legacy in this case was an equitable lien upon the real estate devised to J. B. Borst. But the real estate was not the primary fund for the payment of such legacy. The real and the personal were both given to him, in the same manner; and he is directed to pay the complainant’s legacy out of the testator’s estate. The personal estate bequeathed to J. B. Borst, therefore, was the primary fund for the payment of this legacy. And as it appears from the inventory produced in evidence, that the testator left personal estate sufficient to pay the legacy, the complainant was bound to show that this personal estate was exhausted, in the payment of debts of the testator, or that those who were accountable for it, were irresponsible, before she could resort to the real estate, in the hands of those claiming under the mortgage executed by the devisee.

Again; the devisee, who has accepted of the estate devised and bequeathed to him, is personally liable. And as the part of the real estate bid in by him, upon the master’s sale, is revested in him, in the same manner as if it had never been included in the mortgage, I am inclined to think the appellant’s counsel are right in supposing that this part of the devised premises now remaining in his hands, is, as between him and the complainant, primarily chargeable with the payment of this legacy; in exoneration of those portions of the premises which have been sold to other persons under the decree of foreclosure. Such would undoubtedly have been the case if he had mortgaged only the other three pieces, and had retained the absolute ownership of the parcel which was bid in by himself. And I can see no reason why his suffering that parcel to be sold, and bidding it in himself, should change the equitable rights of the parties. The conclusion at which I have arrived upon the question of payment, renders it unnecessary however that I should further consider this point.

Upon the question of payment, it is proper to take into consideration the fact that this legacy became due and payable about thirteen years before the sale under the decree, in the summer of 1834. And there was nothing to prevent the complainant herself, if she was then single, or her husband, to whom the legacy belonged by virtue of his marital rights, if she was then married, from instituting a'suit to charge the estate devised and bequeathed to J. B. Borst, with the payment of the legacy, at the end of one year after he arrived at the age of twenty-one. It is true, the mother’s life estate in the property had not then terminated. That, however, was no obstacle to the institution of the suit; as the interest in the estate devised to J. B. Borst might have been sold, under a decree of this court, for the payment of the legacy, ¡subject to the life estate of the .widow therein. Again, the giving of the mortgage upon the real estate, in 1826, was an acceptance of the devise by J. B. Borst. And the testimony shows that the husband of the complainant was in need of the money, if it was still due on this legacy. He had also a right to receive payment of the legacy, by virtue of his marital rights. It is very improbable, therefore, that he should have suffered it to remain unpaid for such a length of time. But what is perfectly satisfactory to my mind that this legacy was paid to the husband of the complainant, in his lifetime, is his admission to H. Manning, the witness, that such was the fact. He had the right to'receive the legacy and apply it to his own use. And his receipt for the amount of the legacy would certainly be evidence of the payment, as against the complainant, who survived him; though the legacy would belong to her, as such survivor, provided he had not reduced the same to possession in his lifetime. And there is nothing which renders a written admission of the payment by the husband necessary to establish the fact of payment, as against the surviving wife. His verbal admission of such payment, while he had the right to receive the legacy, and when there was no reason to induce him to make a false statement, is as good as his written receipt for the money; provided there is no doubt of the fact that such admission was made. The witness says that, two or three years before the death of the complainant’s husband, he had a conversation with him in relation to a lot of land in which Dodge claimed an interest in right of his wife, and in which land J. B. Borst had bought out the rest of the heirs. Probably it was the same twelve acres which the testator devised to his daughter Caty, the mother of the complainant and of J. B. Borst, by his will. Dodge wanted to sell his interest in that lot to the witness, who advised him to sell it to J. B. Borst. But Dodge told the witness that he did not wish any thing to do with Borst; that he had settled off with him. Something was said by the witness as to the demand due from Borst to him, to which Dodge replied that he had settled all his demands with him, and did not want any thing to do with him. And the witness in his cross-examination, says he understood Dodge, in this conversation, as referring to the legacy to his wife; for he and Dodge had previously been speaking about that legacy, and witness knew of no other demand. Considering the staleness of this demand, the circumstances under which it was brought forward at the time of the master’s sale, and in connection with a similar demand in behalf of another of the legatees, who had previously admitted that his legacy had been fully paid, I am satisfied I shall do no injustice in this case in dismissing the complainant’s bill, upon the ground that there is nothing due to her on account of the legacy claimed.

The decree of the vice chancellor must, therefore, be reversed with costs. And the bill must be dismissed, with costs, as to the appellants. But as the defendant J. B. Borst admits her claim to the legacy, and that he purchased his parcel of the premises, at the master’s sale, subject to such legacy, she is entitled, as against him, to a decree for the payment thereof, together with her costs in this suit, if she thinks proper to take such a decree; and also to a decree for a sale of the part of the premises which he purchased at the master’s sale, to satisfy such legacy and costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Harrington vs. Bigelow.
    Where two parties have been concerned in the commission of an indictable offence, as in an attempt to compound a. larceny, the court will not lend its aid to either party. In case the defendant can establish a defence in the usual way, by showing his own turpitude as well as that of the complainant, he is at liberty to do so.
    But if, by a legal slip, he has lost his opportunity to make out such a defence, the court will not, as a matter of mere favor, allow him to come in and make a defence of that character.
    Where both parties have been engaged in an illegal transaction, the court will neither lend its active aid to the one party, to get rid of the securities taken upon such transaction, nor aid the other party in retaining them; but will leave both to their strict technical rights.

      This was an application, on the part of the defendant, to open the order to close the proofs in this case; and for leave to examine certain witnesses whose names had not been furnished until after the examination of the complainants witnesses.

      A. Becker & O. L. Barbour, for the complainant.

      J. Rhoades & S. Crippin, for the defendant.
   The Chancellor.

Under the circumstances, this appears to be a proper case to allow the witnesses who were irregularly examined, on the 30th of May last, to be re-examined. But they are not to be examined as to any admissions or confessions of the complainant of his having been guilty of stealing, or as to an illegal compounding of the alleged theft, by him and the defendant. For the allowing such proof would be to enable the defendant to avail himself of the objection that both parties were engaged in an indictable offence, in attempting to compound an alleged larceny. And it would prevent the court from granting any relief whatever, even if the defendant had availed himself of that opportunity to extort securities from the complainant to a large amount. The rule in such cases, is that the court will not lend its aid to either pa'rty. If the defendant can establish the defence, in the usual way, by showing his own turpi- ’ tude as well as that of the complainant, he is at liberty to do so. But, on the other hand, if he, by a legal slip, has lost his opportunity to make out such a defence, the court will not, as a matter of favor, allow him to establish a defence of that character. In other words, where both parties have been engaged in an illegal transaction, the court will not lend its active aid to the one party to get rid of the securities taken upon the illegal transaction, nor will it aid the other party in retaining them; but will leave both to their strict- technical rights. Any proof, however, that the securities, taken by the defendant, were given up and cancelled by him before the commencement of this suit, is a meritorious defence, and ought to be received. The application must, therefore, be granted so far as to permit the defendant to examine any of the witnesses whose names were furnished before the examination of. witnesses commenced, or who were named in the notice of examination, for the 30th of May, at the house of the defendant. But such witnesses are not to be examined as to the written or verbal admissions of the complainant that he had stolen sheep; or to prove in .any way that the complainant had been guilty of stealing, or that the securities in question were taken, upon an agreement to compound such an oifence, and to prevent a prosecution therefor. And the complainant, at anytime before the commencement of the examination of witnesses, under the order, may furnish the names of other witnesses; and may examine them as to any matters as to which the new witnesses of the defendant, whose names were not furnished before the original examination, shall be examined. Either party is also to be at liberty to examine witnesses as to the general character of any witnesses who have been, or shall be hereafter, examined; without furnishing, the names of such witnesses as are to be examined as to character. The order to open the proofs, however, must be upon condition that the defendant, within twenty days after the entry of such order, pays the complainant, or his solicitor, fifteen dollars for his costs in opposing this application. And, in that case, the time to take the testimony is to be extended sixty days after the payment of the said costs. But if the costs are not paid within the twenty days, this application is to be denied, with costs to be taxed.

Order accordingly.


text:
    Edgerton vs. Peckham.
    Where the owner of a lot of land made a written agreement- to sell the same, for $300, one third to be paid down and the residue in one and two years, with interest, and possession was to be delivered immediately; and the agreement containedaprovision that if the purchaser should make default in eithfer of the payments, the vendor should be discharged from the agreement, and that the purchaser should forfeit all the previous payments, and should deliver up the peaceable possession of the premises and the vendee took possession of the premises and made valuable improvements thereon, and paid the first two instalments of the purchase money at the times specified in the contract; and then assigned his contract to the complainant, who took possession of the premises, but did not make the last payment at the day specified in the agreement; nor was he called on for payment nor offered a conveyance upon payment of the money ; but a few days afterwards he tendered the money and demanded a conveyance, which the vendor refused to give, and insisted upon the forfeiture; Held, that time Was not of the essence of the contract, and that the complainant was entitled to a specific performance.
    This was an appeal, by the defendant, from a decree of the vice chancellor of the fifth circuit, decreeing the specific performance of a contract. On the 3d of November, 1835, the defendant entered into a written contract with J. A. Strobeck,, to sell and convey to him the premises in question, upon payment of $ 100 at the date of the agreement, $ 100 and interest in one year, and $ 100 with interest in two years ; which sums Strobeck agreed to pay. And by the agreement Strobeck was to take the immediate possession of the premises. The agreement then contained the following clause': “ In case the said Strobeck shall make default in either of the payments above mentioned, then the said Peckham is to be discharged from this agreement to sell and convey to the said Strobeck ; and the said Strobeck is to forfeit to the said Peckham all the previous payments, and give peaceable possession of the same above mentioned lot.” Strobeck went into possession of the premises, under the agreement, and made the two first payments at the times specified in the contract ; and-he made some considerable expenditures and improvements upon the premises. . On the 10th of April, 1837, Strobeck, for a valuable consideration, assigned all his interest in the contract to S.' P. Edgerton, the complainant; who immediately went into possession of the premises, and made other improvements thereon, of which assignment the defendant had notice. On the day upon which the last payment became due the same was not paid; nor did the defendant ask for payment, or offer to convey the premises upon receiving such last payment. The neglect of the complainant to pay on the day specified in the contract was, as he alleged in his bill, in consequence of his misapprehension of the time at which it was payable. On the 16th of November, S. Parkhurst, at the request of the complainant, called upon the defendant in relation to this payment; who said he supposed, if he had the money offered to him, he should take it. And. three or four days afterwards Parkhurst, as the agent of the complainant, called upon the defendant and tendered the money due upon the contract; but the defendant then said he had money enough, and did not want it, and that he should not take it.
    The following opinion was delivered by the vice chancellor:
    Gridley, V. C. This case presents upon the facts, and by the concession of the counsel, the naked question, whether in a case where the agreement was clear, certain, fair and mutual, when possession was taken under it and valuable improvements made upon the premises, and large payments made upon the contract, (in this case two-thirds of the purchase price,) and a long occupation of the premises enjoyed by the purchaser, and where no change has occurred in the circumstances of the premises, the omission to pay an instalment by the exact day prescribed therefor, will work a forfeiture of the'contract and of previous payments, at equity as well as at law) and will enable the vendor to repossess himself of the premises, by an enforcement of a literal construction of the provisions relating to the forfeiture.

      It is undeniably true, and the books are full of authorities to prove the proposition, that in ordinary cases time is not of the essence of the contract; and that a mere default of payment at the day agreed on, will not, in such cases, without.some change in the circumstances of the property or of the parties, occasioned by such delay, authorize a court of chancery to deny a specific performance.

      But it is equally clear that there is a class of cases where time is of the essence of the contract; and where a disregard of the conditions of the contract will deprive a party of relief, both at law and in equity.
    1st. Time may have become of the essence of the contract by the rise or depreciation of the value of the premises contracted to be sold. And, therefore, one who has given evidence of the abandonment of the contract, by lying by to see whether it will or will not be a bargain to take the property, will not be relieved; though he may have paid some portion of the purchase money. And gross negligence is evidence of an abandonment which will be a bar to a bill for relief. This doctrine is advanced in and supported by a great variety of cases. \ (13 Ves. 244; 5 Id. 818, 720, S. C. & Id. 667. 4 John. 494. ' 3 John. Ch. 370.) I
    2d. Time may be of the essence of the contract, by reason of the nature of the interest in the property which is to be conveyed. Contracts for the purchase of stock are of this description; and the reason assigned is, that the daily fluctuations in the price would render a punctual performance of the essence of the contract. [See 4 Fes. 492; 1 Sim. & Stew. 59.) j So also in the case of the sale of a reversionary interest, where the vendor may be supposed to be in want of the consideration money, and to whom it is of importance that the money should be paid punctually. (McChum v. Rogers^ 4 Bro. C. C. 391. Osmond v. Anderson, 2 Ball & Beat. 370.) >, So where there is an agreement to sell at a valuation to be made within a certain time, by persons who are named. | (6 Mad. 26.), ? So also in á sale of a lease depending on lives[¡{Osmond v. Anderson, Ball & Beat. 370.)J There a distinction is taken between such a case and a case of purchase, where time is said to be not of the essence of the contract; as a compensation for the delay may be paid in the interest, &c.
    3d, Time may be of the essence of the contract when there is an express stipulation to that effect, and where the contract is executory at the time of the default; no part or no considerable part of the purchase money having been paid. And this is on a very plain principle, to wit: that the performance, by the ven-dee, is a condition precedent to the performance of the contract by the vendor. It is believed that most of the modem cases which have been supposed to establish the rule that a mere naked default will ipso facto work a forfeiture, not relievable in equity, will be found to fall within this class of cases or the one last above mentioned. j Such was the ease of Mills v. Smithy (2 Edw. Ch. Rep. 78.) There no part of the consideration money had been paid, though some money had been expended on the premises. ■ I cannot forbear remarking on this case, however, highly as I respect the opinion of the vice chancellor of the first circuit, that I consider it as adopting an exceedingly severe rule; and a case which upon the facts disclosed entitled the complainant to relief. | I have examined all the authorities cited on the argument, which were supposed to deprive the party vendee of relief in the case of a naked defaidt merely, and I do not find any of them to establish the principle in a case parallel to the one at bar. None of them are cases of the purchase of premises accompanied with a long enjoyment, and the expenditure of moneys on them, and the payment of two-thirds of the purchase money. In the case in 3 Merivale, 84, the possessor being a devisee in trust, put up the premises at auction^ in May, and the defendant became the purchaser on certain terms; one of which terms was to pay part of the money by way of deposit, at the sale, and to sign an agreement to pay the residue on the 20th day of June following, on having a deed, «fee. On the delivery of the abstract several objections were taken to the title; and due notice was given in writing, to the conlplainant’s solicitor, that the defendant considered the contract at an end, and that he claimed the deposit. That claim being refused, an action was •brought to recover it; and a bill filed by the complainant, for a specific performance. And upon that state of facts, the lord chancellor held time of the essence of the contract. It is to be remarked, however, in support of the distinction between such a case and a case of part performance, that Sugden, of counsel for the defendants, while contending that time was of the essence of the contract, yields the point, that when steps have been taken by the vendee and the contract is partly per

      formed, the rule is otherwise, unless there has been great negligence or unreasonable delay.
    fin the case in 3 Mad, 440 to 447, there was a memorandum of" an agreement for a lease, made 24th of March, 1818, for a term of thirty-five years, at a certain rent; with a proviso to consider the lease void on a failure to pay as agreed. And as a consideration for granting the lease, Hudson agreed to pay Waterman £900; £100 to be paid down, and £400 by a three months acceptance: with a condition that the lease should be executed in six months, if the whole £900 should be paid.' But it was agreed further, that if the same should not be thus paid, that the agreement should be void, possession redelivered on the 30th of September, and that Hudson should pay £500 as liquidated damages, and £150 as compensation for rent, &c. for the time, &c. to be retained out of the moneys that should have been paid. ■ The party went into possession of the premises, paid the £100 down, and afterwards £400 in addition, but did not pay the whole £900 at the time agreed; but there had been a subsequent receipt of rents. And it was held, that this was a case, originally, where time was of the essence of the contract, but that it had been waived by the conduct of the party. But to show how far this case falls short of establishing the principle, that money paid in part performance of a contract for the purchase of lands, is forfeited in equity, the vice chancellor proceeds to say, that if the party had intended to insist upon the stipulation, in the contract, putting an end to it, he should have demanded it on the 30th of September, and should not have received the £58 rent; but should have regarded himself a debtor to the other contracting party, to the amount of £350, being the balance of £500 paid after deducting the £150, which was the sum agreed on as a compensation for rent, &c.
    The case in 6 Mad. 26, was one where the time of valuation was material. The case of Williams v. Edwards, (2 Sim. Sp Stew. 78,) was one where one of the terms of the agreement was, that the contract should be void, unless. the purchasers’ counsel should be of opinion that a marketable title could be made by a certain time..

      The cases in 3 Atkins, 336, and 2 Bro. C. C. 431, were cases where legacies were given upon the performance of certain conditions ; which conditions were never performed. ]
    There are other cases which establish a similar doctrine, but I have not found any cases which, when fairly examined, did not fall within one or the other of the two last mentioned classes of cases, being distinguished from the case at bar by the absence of any proof of long enjoyment of the premises, payment of most of the purchase money, and expensive improvements made. And I have found no case where these features did exist in which it was held that the contract was forfeited, in equity, unless there had'been such delay as to be evidence of abandonment, or at least, to have in some degree affected the circumstances of the parties, or the property in question. ¿The case of Lynch v. Benedict, (1 John. Ch. Rep. 370,) relied on by the defendant’s counsel, was a case of the grossest neglect, and of a clear abandonment of the contract; there was a sale of the premises to a third person, with the consent-of the complainant. Nor do I understand the late chancellor, though his language is strong, as laying down, in his review and summing up of the cases, any such rule as is insisted on in this case. J
    The proposition which is maintained by the defendant’s counsel, is a bold and startling one. If that proposition be the law of the court of equity, then a purchaser and holder of lands, under such a contract as this, may have paid, upon purchasing a farm, $1000 annually, for'many years, may have expended thousands of dollars in improvements, maybe in truth one of the wealthiest farmers and land-holders in the country, and may, from forgetfulness, or some other accidental cause, (which of course is not susceptible of other proof than his own assertion,) omit to pay the last instalment of $>1000, by the exact hour prescribed by the contract; and although he may be ready with the money, an íiour after the default, and offer it to his inexorable creditor, yet he may be doomed to see the whole of his estate, the reward of years of toil and industry, swept from him in a moment, by this unyielding rule of law; and may invoke in vain the benign powers of the court of chancery for his relief. This consideration gains strength immeasurably, when it is remembered that a large portion of the land contracts in the western section of this state, are framed with a provision similar to the one in the contract in this case; which clothes the holders of such contracts with power, (if the alleged construction of this contract be .the true one,) to insist upon the forfeiture of every farm in that prosperous and wealthy region of the country, upon the unexplained failure to pay merely a single dollar, upon the contract, at the exact time prescribed therein. It seems to'¡me, that this is too monstrous a proposition to be maintained in the nineteenth century. For while the application of this rule to the case of a contract which is not executed, by the payment of any part of the purchase money, is strictly just and proper, it is clear that to apply it to cases such as I have supposed, or to the very case at bar, would work the greatest injustice ; and would require the court of chancery to be the organ and instrument of every Shylock, who chose to insist upon the rigorous exaction of his pound of flesh.
    It is said, that it is not the province of the court of chancery, any more than of a court of law, to make contracts for parties, but to enforce them. This is true, as a general proposition. But it is also true, that the court of chancery looks to the substance of a contract; and when the substance of a contract is fulfilled, and the general intention of the parties carried into effect, the court Relieves against any forfeiture.or penalty, inserted for the purpose of-enforcing the contract, if See Jeremy on Eq. Juris. 470; Fonbl. Eq. 130, 4th Am. ed.)\ It was upon this principle, that upon the forfeiture of the penalty of a penal bond, the court of chancery was accustomed to relieve against the penalty, upon the payment of the sum really due, and the interest thereon, before the statute had rendered a recourse to a court of equity necessary.
    In England it is laid down, in all the elementary books and cases, that a specific performance will be decreed, notwithstanding a bare default, except in the classes of causes, which I have noted., above. Newland on Contracts, 238 to 240, contains a strong authority on the very point in question. He says, “ It is material to observe that, even though a clause be introduced into the agreement, declaring it to be void if the stipulation as to time be not complied with, still equity will not consider the performance at the day an essential part of the contract.” And he cites two cases directly in point.; Upon the hearing of the last of these causes, before Lord Thurlow, after the decision of the main question, Mansfield, for the defendant, said, “If this be the doctrine of the court, it will be necessary in future agreements to insert a clause, that notwithstanding the decision of the court of chancery to the contrary, it is the.meaning and intention of the parties that the contract shall be void, if the conveyance be not made at a certain day.” Lord Thurlow is reported to have replied — “ Such a clause may be inserted, and the parties will then be just as far forward as they are now.”
    Although Lord Eldon did not carry out Lord Thurlow’s doctrine on this subject in its full extent, as to the materiality of time in a contract under all circumstances, yet he coincided in his doctrine in cases where payment had been made upon the contract. And in Seton v. Slade, (7 Vesey, 27 to 84,) he discusses the subject of regarding time as of the essence of the contract, in chancery as at law, with great force. He says that it is impossible to regard time in this court as at law; and he mentions the case of a mortgage as somewhat analogous. He then proceeds as follows: “But there is another circumstance — the effect of a contract for purchase is very different at law and in equity; at law the estate remains the estate of the vendor, and the money that of the vendee. It is not so here; the estate is the real estate of the vendee; it descends to his heirs; it is devisable by his will; therefore I do not take a full view of the subject, upon the question of time, unless that is taken into consideration.” Again, in Radcliffe v. Warrington, (12 Vesey, 320,) there was a provision in the contract, “ that if the party should neglect or fail to comply with the condition, (which respected a certain time,) the deposit should be forfeited.” Yet the lord chancellor held that the court would, in its discretion, relieve against the lapse of time, upon the circumstances of the case.
    I have already in reference to the case in Maddocle’s Reports,
      mentioned the distinction conceded- by Sugden, arguendo,- between the case of a contract wholly executory, and one where steps had been taken and money paid under it, in regard to relief against the lapse of time. Other authorities also, in the English court, take the same ground. (See 4 Vesey, 689, note b. citing 4 Bro. G. G. 469.) In this case the lord chancellor was deciding a case where no steps had been taken by the parties, and where he held the lapse of .time a bar; but it will clearly be seen that he concedes the rule to be different when steps had been taken and money paid: he says, "In most of the cases there have been steps taken. Is there any case in which, without any previous communication between the parties, the time has been suffered to elapse? It wants a case to prove that when nothing has been done by the parties this court will hold, in a contract of buying and selling, a rule that certainly is not the rule of law — that time is no essential part of the contract. Here no step has been taken, from the day of the sale, for six months after the time when the contract was to be completed.” |
    The American cases it is believed follow the English doctrine of holding time non-essential, in a case of an agreement of purchase, when the purchase price is partly paid; unless there have been such laches as amounts to evidence of abandonment, or such as has caused the lands to fluctuate in value, or has in some way put the party, to whom the performance was to be made, in a worse condition, by the delay,
    f in the supreme court of the United States, Brashier v. Grats, (6 Wheat. 528,) and Bank of Columbia v. Hayner, (5 Cranch, 262, and 1 Peters, 464,) are strong cases on this point. Other cases will be found in 3 Bibb, 366, 2 Id. 566, 1 Marsh. 423. In the courts of this state, some cases have been decided which hold a doctrine hostile to the rule contended for by the defendant’s counsel. ■ In Walters v. Travis, (9 John. R. 450,) the court of errors ordered a specific performance after a default of 12 years. The language of Spencer, J., in this case, puts the principle on its true ground. Woodcock v. Bennett, (1 Cowen, 728 to 733,) and Seymour v. Delancey, (3 Id. 445,) adopt the same rule. '|

      The present chancellor, (5 Paige, 241,) by holding it sufficient for the vendor to give a good title at the time of the decree, seems to have adopted the same rule, as to time; and also, in the case of Holden v. Gilbert, decided on the 21st of August last, so far as I can understand the brief notice of the case as reported in the Saratoga Sentinel, he must have held that time was not of the essence of the contract, in a case where it was intended by the parties to have been so. In that case, the mortgage contained a provision, which, by its terms, entitled the mortgagee to consider the whole of the money secured by the instrument, as payable on the failure to pay certain interest moneys, for the space of thirty days after said interest should " fall due, although the moneys would not have fallen due in four years. In that case, the chancellor is reported to have held, as was held by Lord Eldon, in the case put by him in 7 Vesey, 27, that the complainant could not insist upon the forfeiture in this court; but that the provision referred to would be available to him only upon a foreclosure at law, by advertisement under the statute. This seems to affirm the principle that a mere default as to time, and nothing else, will not, in this court, be held, to work a forfeiture, though such will be the effect at law. This is undeniably in accordance with the elementary doctrine of the court of chancery, that it is an original ground of the jurisdiction of this court to relieve against penalties and forfeitures; regarding them as a means only of enforcing the main contract, and dispensing with them when that contract can be substantially carried into effect without any injury to the party for whose security the forfeiture was provided, except such injury as may be compensated by the interest on the money due. It is, moreover, consonant to the great principles of justice, which would be outraged if, in the case at bar, the defendant could be allowed to wrest from the hands of the complainant the premises he has long enjoyed, and greatly improved, and almost entirely paid for, by reason of the mere default of a day, confessedly working no injury to the defendant. My opinion is, that jurisdiction was given to the court of chancery for the express object, among others, of relieving against Such cases of hardship, on the part of cruel and unprincipled creditors. My conclusion, therefore, is that the complainant is entitled to relief, by having the contract in question specifically performed.
    jfThe only other question in the case relates to costs; and I am referred to the case of Dumond v. Shafts, (2 Paige, 182,) as an authority for giving costs. That would seem to be an authority in point; and so the counsel of the defendant conceded the rule to be, in the event that the law should be found to be against the defendant, on the merits of the case.

      T. Jenkins, for the appellant.
    The testimony of Stephen Parkhurst, with respect to extending the time for the payment of the money by the complainant to the defendant, can have no effect upon this case; because no such fact is charged in the bill, and the proof is, therefore, not pertinent to the issue. The conversation of the defendant, with Parkhurst, did not amount to any valid agreement, even if it had taken place before breach, and had been in relation to a contract capable of being varied by parol. But the time of payment, especially after forfeiture, could not be extended by parol. If it could be done by parol after breach, it should have been upon some good consideration. The excuse set forth in the bill, that the payment was not made on the day specified in the contract, owing to a misapprehension of the complainant as to the day of payment, is denied in the answer, and contradicted by the proof. It was the complainant’s duty to have paid, or offered to pay, the money at the day, and to have demanded the deed. In this case, time is of the essence of the contract, and the non-payment of the money at the day, by the complainant, rendered the agreement void.

      C. P. Kirkland, for the respondent.
    The plaintiff, by tendering the money and demanding a deed, and by calling again to receive it, became entitled to his deed, and is now entitled to a decree of specific performance. Time merely, and separate entirely from every other consideration, is not, in equity, material, in cases of agreements of this sort. This results from the nature of the contract. The vendee, in equity, becomes the owner equitably of the fee, and the vendor holds the contract as a quasi mortgage for the purchase money; and in reference merely to the times of payment, it is on the footing of a mortgage. At any rate, to render mere time material, the vendor must make a demahd of the vendee, and the vendee must neglect, delay, or refuse payment. More emphatically is all this" so, when there has been an essential part performance. The true rule, we apprehend, is that the bare omission to pay at the exact day has no manner of effect on the vendee’s equitable rights, when there has been no change of circumstances — no alteration in any way of the estate — no trifling with, or misleading of, the vendor — no demand by him on the vendee; where, too, there has been a part performance, and where the vendee within a very few days after the day, and before any act or step has been done or taken op the part of the vendor, actually tenders and offers the money. Even if, by the words of the contract in this case, time was material, the defendant expressly waived it. After saying, on the 16th of November, that he would take the 'money, and after it had been duly tendered and a deed demanded on the 20th, and after the plaintiff had presented himself again on the 22d, to receive it, it was grossly inequitable in the defendant to bring the ejectment suit, particularly as he did not, at the time of the tender, place his refusal on the ground of forfeiture. Under these circumstances, the defendant having compelled the plaintiff to come into this court, for self preservation, is clearly liable to the costs of this suit; more especially as he avowed his object to be to make up out of this innocent plaintiff what he had lost by the cheats of others.
   The Chancellor.

As a general rule, time is not of the essence of a contract for the payment of money, upon an agreement for the sale and conveyance of real estate. And I can se^ nothing in the circumstances of this case to justify the court in excepting it from the general rule. The contract, it is true, contains a general provision, that if default shall be made in either of the payments Strobeck shall forfeit all the previous payments, and give up the possession of the premises. This, however, is but the legal effect of the contract without such a provision. For if no such provision had been contained in the agreement, the defendant might have brought an action of ejectment to recover the possession of the premises; which ejectment suit this court would not have restrained, except upon the terms of paying the balance of the purchase money and the costs of suit. Nor could the payments already made, pursuant to the terms of the contract, have been recovered back, if the vendee had refused to complete his purchase; even if this clause of forfeiture had not been inserted in the contract. The question here presented, then, is, whether this clause was intended, by the parties, to deprive the purchaser of all legal and equitable right to the premises, or to the previous payments, if for any cause the last payment should not be made at the precise moment when it became due and payable ; and if so, whether it is not the duty of this court to relieve against such a forfeiture.

The case of Wells v. Smith, (7 Paige’s Rep. 22,) was entirely different from this. There, the performance of the condition precedent, on or before the particular day specified, was essential to the vendor’s security. The deed of the lot was to be delivered on a particular day, and the purchase money was to be secured by a bond and mortgage upon the premises; and to render the security perfectly safe, the purchaser was to build a house of particular dimensions upon the premises before that time, or pay f>1000 of the purchase money on that day, at his election. But he did neither; and by the express terms of the agreement, the vendor was not to give the deed, and take the bond and mortgage on the premises, in that event. In that case, too, the purchaser had only paid for the use of the property; so that there was in fact no forfeiture except the loss of a profitable speculation, which the purchaser failed to obtain the benefit of by his non-performance of a condition precedent to the vesting of the title of the property in him. \

The vice chancellor, in his opinion, has carefully reviewed most of the cases on this subject, both in this country and in England. It will therefore be useless for me again to travel over the same ground in giving my opinion in this case. It is sufficient to say that Í concur in the conclusion at which he arrived, that this is not a case in which the vendor was entitled to insist upon a forfeiture of the contract; and to retain the premises, with the improvements made thereon, as well as the two thirds of the purchase money which he had received upon the contract.^ And that the complainant was entitled to a specific performance. J

The decree appealed from is therefore affirmed, with costs.


text:
    Marvin vs. Ellwood and Titus.
    A simple bill of interpleader cannot be sustained by a party who has, in any way, lent himself to further the claims of either of the parties who claim the fund in controversy, or to aid one, in obtaining the possession thereof, to the exclusion of the other.
    A person in possession of a fund, who stands in the same relation, in respect to the fund, to each of the parties claiming it, may receive an indemnity which is tendered to him by either, and may pay over the fund to the person giving such indemnity. But upon doing so his right to file a bill of interpleader is determined.
    A simultaneous offer, by the possessor of the fund, to both claimants of such fund, to pay it over to either who will fully indemnify him, and save the expense of filing an interpleading bill, will not be deemed collusion, where both neglect and refuse to give such indemnity; and where both claimants consent to give such indemnity he can safely receive it from either.
    The relation in which an attorney stands to his client, will not permit him to file an ordinary bill of interpleader, upon every claim made to the fund which has been collected by him for his client.
    It is the duty of an attorney to pay over to his client money collected for him, whenever he can do it with safety; and even when there is doubt whether the securities, upon which the money was collected, did in fact belong to such client, all that he can require from his client, on paying over the money to him, is an indemnity.
    And where he is not satisfied with the responsibility of his client, he should so inform him; and should offer to pay over the money to him upon his giving him a sufficient indemnity.
    Whether, under any circumstances, an attorney can sustain a bill of interpleader, against his client and a stranger, where the client is wholly irresponsible, and where he refuses to indemnify the attorney against the claim of such stranger which is apparently well founded ? Qucere.

    To sustain such a bill, the complainant, at least, fiiust shotv that -he has good reason to believe the adverse claim is well founded, and that there is no possibility of protecting himself from loss by any other means than by the interference of the court.

      Where the client of an attorney assigns the demand, on which the suit is commenced, and the assignor afterwards attempts to repudiate the assignment, as having been obtained by fraud, or as being invalid for any other cause, the attorney, if he has not recognized either the assignor or assignee as his, client, subsequent to the assignment, may file a bill of interpleader; as standing in the same privity with each.

      It seems, however, in such a case, that the court in which the suit was pending at the time of the alleged assignment, if both the parties claiming to be the real plaintiffs are within its jurisdiction, has the power to protect the attorney; by directing the money to be brought into court, and restraining the real as well as nominal plaintiff from molesting him on account thereof.
    A bailee or agent, who has received property as such, is at aU times at liberty to show that his bailor, or principal, has parted with his interest in the property subsequent to the bailment, oi to the delivery to the agent. But such bailee or agent cannot, at law, dispute the original title of the person from whom he received the property.
    A strict bill of interpleader cannot be maintained by a bailee, or agent, to settle the conflicting claims of bailor, or principal, and a stranger who claims the property by a distinct and independent title.
    Nejther can an attorney maintain such a bill, to settle the claim to money which fie has collected for his client; where a mere stranger claims the money, upon the ground that the security upon which the money was collected was originally obtained by his client wrongfully.
    This was an appeal from a decree of the vice chancellor of the fourth circuit, dismissing the complainant’s bill of interpleader ; with costs, as to the defendant EUwood, and without costs as to the other defendant.
    In the latter part of 1836, Asa Farr left a note, against O. H. Dibble & Co. with the complainant for collection ; which note was originally given to the mercantile firm of Farr & Farnham, and was endorsed, in the copartnership name, by J. G. Farr, one of the members of that firm, to Asa Farr. Judgment was recovered upon the note, in July, 1837, in favor of Asa Farr, for $511,32, besides costs. And, on the 15th of October thereafter, Asa Farr sold and assigned the judgment to the defendant Ell-wood ; to collect the same of Dibble & Co., or to receive the moneys thereon from the complainant, the attorney of the assignor. Notice of this assignment was immediately given to the complainant, who informed EUwood, by letter, that he had brought a suit against the sheriff, for neglecting to return the execution against Dibble & Co., which suit had not then been tried. Judgment was afterwards recovered against the sheriff, for the amount of the debt and costs in the judgment against Dibble & Co. The complainant, and his law partner G. L. Marvin, received upon this last judgment $597, between the 1st of January, 1840, and the 10th of May in'the same year; of which sum $400 was received in the month of January, and the residue in May.
    The defendant Titus, who had been appointed a receiver in a creditor’s suit, brought upon a judgment against the members of the firm of Farr &. Farnham, claimed the proceeds of the debt against Dibble & Co. upon the alleged ground that one of the copartners had transferred the note to Asa Farr, in payment of his individual indebtedness, and in fraud of the creditors of the firm; and a correspondence took place between Titus and the complainant, in the latter part of January and the beginning of February, 1840, in which the latter was apprised of that claim. About the 20th of June in that year, the defendant Ellwood sent an attorney to Buffalo, where the complainant resided, to obtain a statement of the moneys‘received by the latter upon the judgment against the sheriff, and to obtain payment thereof. And having received from him a statement, which Lake, the attorney, believed to be false and deceptive, the latter gave notice to the sheriff that he must not pay the residue of the judgment to Marvin, as the attorney on record. Ellwood subsequently applied to the supreme court, where the judgment against the sheriff was recovered, to compel payment of the money; and he obtained an order that Marvin pay into court the $597, after deducting the attorney’s costs, within ten days, or that an attachment issue against hiifi. And thereupon the complainant, who had previously offered to pay over the money of his client to the adverse party upon being indemnified by him, went to New-York,to meet Titus; and while there the bill of interpleader in this suit was filed, and an injunction was obtained restraining Ellwood from proceeding against him upon the order of the-supreme court.
    To that bill Ellwood put in his answer, showing his right to the fund in question, as the assignee of the judgment against Dibble & Co.; and also putting in issue the allegations, in the . complainant’s bill, that such bill was not filed at the request of either party, and that the complainant did not collude with either. But he admitted that the complainant did not collude with him, and that the bill was not filed at his request. The defendant Titus, by his answer, claimed the fund, as belonging to the firm of Farr & Farnham, for the benefit of their creditors; but said nothing as to the allegations in the bill that there was no collusion with him. Replications were filed to both answers. And the complainant and both of the defendants took testimony in the suit; not only as to the matters stated in the bill, and put in issue by the answer of the defendant Ellwood, but also as between the defendants themselves, in relation to the right to the fund in question. The vice chancellor decided that the bill was improperly filed, for the following reasons ; First, because the subject matter of the controversy arose from the relation of attorney and client, between the complainant and one of the parties; creating a different duty on the part of the former to Ellwood, from that which he owed to Titus; Secondly, because the complainant, after the assignment of the judgment,'had promised to pay the money to Ellwood, when collected; and Thirdly, on account of collusion of the complainant with the defendant Titus; which collusion his honor considered as established by the proofs in the cause.
    The following opinion was delivered by the vice chancellor.
    Willard, V. C. The first question which arises in this case is, whether the bill is properly filed. When this cause was before the chancellor, on the motion to dissolve the injunction, he expressed the opinion that there was enough in the bill, if true, to sustain it as a bill of interpleader; but he also intimated that there were sufficient facts disclosed in the answer of Ellwood, if established by the proof, to entitle him to a dismissal of the bill.
    Although the charge in the bill, that Titus, in January and February, 1840, had given notice to the complainant of his appointment as receiver of the effects of Farr & Farnham, and had required the proceeds of the note of Dibble & Co. to be paid to him as such, is proved by the letters and testimony of Mr. Titus, it is nevertheless probable that no further steps would have been taken by Titus, to compel the complainant to pay over to him, had it not been for the suggestions of the complainant himself. In June, 1840, the defendant Ellwood, having become dissatisfied with the excuses of the complainant for his delay in paying over the money he had collected, took measures to compel him; and employed Mr. Lake as his attorney for that purpose. The requisite demand was made upon the complainant, and the sheriff was notified not to pay over any more money to him. The letters of the complainant to the defendant Titus, of the 20th and 29th of June, 1840, (.Exhibits No, 1 and 2,) show the state of the complainant’s feelings at that time. In the letter of the 20th of June, he apprises Mr. Titus that he, Titus, is the only person who can countermand the orders of Ellwood, and he offers on being indemnified, “ to push the matter through, and get the money” for him, Titus. In the letter of the 29th, he speculates on the best mode of defeating the claim of Ellwood ; suggests the expedient of having him summoned before the master, and advises Mr. Titus to send him, (complainant) a certified copy of the order under which he acts, and notice of a demand on the sheriff, requiring him not to pay to Ellwood, but to the complainant, or Titus. Exhibits No. 3, 4 and 5, being a continuation of the same correspondence, are of a similar character. The letter of Mr. Titus of the 3d of July, 1840, in answer to that of the complainant of the 29th of June, promises to exhibit to him a copy of the order appointing him receiver; states that he shall write to Ellwood, advising him that if he persists in his claim he shall summon him before the master; expresses the hope that the complainant will hand over the proceeds of the judgment; and promises to indemnify him for the same.
    The allegation, in the answer of the defendant Ellwood, as to the consideration paid by him to Asa Farr, for the judgment, is proved; and there is no evidence impeaching the bona lides of the transaction between them. There is evidence also, to prove an indebtedness from Joseph G. Farr to Asa Farr, before the transfer of the note against O. H. Dibble & Co., by the former to the latter. If the testimony of Farnham is received, and the complainant cannot object to it, while .it shows that a partnership demand of Farr & Farnham was probably assigned by J. G.‘ Farr to Asa Farr for an individual debt, it still disproves the assertion, in the bill, that the note was merely left with Asa Farr for collection. The testimony of Farnham repels the charge of any felonious or fraudulent taking of the notes of the firm by Joseph G. Farr. It proves that they were selected for the purposes of a collecting tour, and were probably taken with that design, and before the firm had failed. The allegation that Joseph G. Farr had a right to control the suit of Asa Farr against Dibble is unsupported by proof, and is in fact substantially disproved.
    Although the suit of Asa Farr against Dibble, and the sam& against the sheriff, were in the name of Mr. Allen as attorney, it is admitted in the bill, and also proved, that.he was the law partner of the complainant. The complainant, in' his letter to the defendant Ellwood, of the 27th of October, 1837, recognizes him as the owner of the debt, and as bis client in the suit against the sheriff. These facts, in connection with the pleadings, are all that are necessary to be adverted to in discussing the question, whether the bill can be sustained as a bill of inter-pleader.
    The proper case for an interpleader, is where two' persons claim from a third the same debt, or the same duty. (See Doufy v Augrove, 2 Ves. 310.) If the complainant, in such a case, does not know to whom the debt or duty belongs, and cannot otherwise be .protected, he is entitled on paying the money into court to exhibit his bill. (See 2 Story's Eq. tit. Interpleader.) The complainant, however, must be as indifferent between the parties as a stakeholder. He must not collude with either, or receive an indemnity from either. If he is under a liability, independent of what arises from the possession of the fund, an interpleader will not lie. It is on this principle that there is no interpleader between landlord and tenant, or principal and agent. The liability in the case of a tenant, to his landlord, is more extensive than that of a stakeholder; whether it arises from privity of contract or privity of estate. And in the case of principal and agent there is invariably a contract, express or implied, existing between them. (See Crawshaw v. Thornton, 2 Mylne & Craig, 1.)
    The relation of attorney and client between the complainant and Ellwood, created a duty different from that which existed between the complainant and' Titus. (See 2 Story’s Eq. 122, § 816.) The one was that of confidence and trust; the other, merely the duty which one citizen owes to another. As attorney, the complainant was entitled to his costs from Ellwood. A voluntary payment to his client, of money collected by an attorney in that character, would always be a protection to him. Had Marvin paid to Ellwood the amount collected on the judgment, no court would have ordered him to pay it, or the same amount, to Mr. Titus. If the latter, as receiver, had desired to contest Ellwood’s title to it, he should have done so in a suit with Ellwood; with or without making Marvin a party, according to circumstances. In general, a stranger cannot know that the attorney has funds in his hands, not paid over to his client, to which. he can interpose a claim ; unless the attorney himself in violation of his professional duty discloses the same. It would be contrary to sound morals, to permit him to sustain a suit in this court against his own client, and at the expense of the latter, in order to transfer the fruits of his suit to another party. Such a course would seem to be bidding a premium on professional infidelity.
    In one of the cases, the chancellor has aptly compared the relation which the complainant, -in a proper bill of interpleader, bears to the fund in controversy, to that of a stakeholder. (Ba-deau v. Rogers, 2 Paige, 209.) A person in that condition,, ignorant of the rightful owner of the fund, and when the recovery against him, at the suit of one party, may not be a protection against the claim made by another, may well require the aid of this court to protect him. But even slight circumstances take from him the protection of the court. An indemnity from either party destroys the character of impartiality, and entitles the defendant to a dismissal of the bill. (Stratham v. Hall, Turn. & Russ. 30.) So also does a promise to pay the debt to either party. (See remarks of Lord Cottenhani in Crawshay v. Thornton, 2 Mylne & Craig, 19.) In the present case the complainant offered to pay to Titus, on being indemnified, and the latter, it seems offered him an indemnity as to the amount, dollar for dollar, but not against the costs; and upon that point they disagreed, and no indemnity was given.
    The defendant Ellwood, in his answer alleges, that in the spring of 1838 the complainant promised to pay him the amount of the judgment against Dibble, as soon as it was collected. An express promise to pay is not proved by the letters; although the complainant evidently recognized Ellwood as, his client, and the person whose directions were to be obeyed concerning the demand in suit. In the testimony of Mr. Lake, before the examiner, the complainant called for the confessions of Ellwood, in order to prove a notice of Titus’ claim; and thus made the whole statements of Ellwood, uttered at the same time,evidence in this cause. In this.manner, the defendant alleges he has proved the truth of the answer in this respect, if indeed it required confirmation. I am inclined to give credit to the answer of Mr. Ellwood, in this particular. It is supported by several other circumstances, and is under oath. The contrary is not directly affirmed in the bill; and if it were, the bill is contradicted in so many material parts of it, as to impair all confidence in the truth of it, as matter of evidence.
    To sustain this bill of interpleader would create a dangerous precedent; it is a bold innovation, at war with established principles. If Mr. Titus, as receiver, had a just claim to the fund, and wished to arrest it in the hands of the attorney, he should have filed a bill against Ellwood, making Marvin a party defendant with him, if necessary; so as to adjust his lien upon the fund in the same suit. In such a suit, if the attorney acted in good faith, he would meet with protection.
    I think also, the averment in the bill denying collusion is disproved by the defendant Ellwood. The whole course of the evidence shows that the complainant, since the attempt of Ell-wood, in 1840, to obtain the money out of his hands, by an order of the supreme court, has not aoted like a neutral. His correspondence with Titus, which is made an exhibit, shows a strong and decided partiality for the claim of the defendant Titus, against that of his own client, Ellwood. And Mr. Titus favored those advances which the complainant made. No bad faith is imputed to him, as he was merely acting for others, and doubtless ignorant of the true state of Ellwood’s title. • His answer does not put in issue the collusion with the complainant. He merely denies the collusion with which he is charged in the bill, and there being no such charge, the denial is a nullity.
    I think, on the whole, the bill of interpleader is not properly filed, for the reasons above stated, which may be briefly recapitulated thus: 1st. The subject matter of the controversy, arising from the relation the complainant bore to the defendant Ellwood that of attorney and client, creating a different duty from that between him and Titus; 2d. The fact that the complainant at one time promised to pay the defendant Ellwood the money when collected; 3d. The collusion between the complainant and Titus, to the injury of Ellwood.
    The bill must be dismissed, and the complainant must pay the costs of the defendant Ellwood. As respects Titus, he is not entitled to costs as against the complainant, nor should he pay those of the latter. The bill as to him will be dismissed without costs.
    I have not deemed it necessary to decide the question on the motion to suppress the deposition of Farnham. His testimony was not injurious to the defendant Ellwood, as between him and the complainant. Nor have I passed upon numerous other objections to testimony with which the case abounds. The cross-examination of Mr. Lake, by the complainant, exhibits one of those abuses of the privilege of counsel, which, to the honor of the profession, rarely occurs. If the complainant claimed no right in opposition to Ellwood, the whole cross-examination by him was useless; and if he did claim such right, an interpleader cannot lie. It shows, among other things, that the complainant stood otherwise than indifferent between the defendants.

      The counsel for Ellwood seems to suppose, that on dismissing the bill, the court must decide the right to the fund in question. I do not so understand the practice. The bill being dismissed, the parties are remitted to their legal rights as they stood when the injunction was allowed. Mr. Ellwood can proceed with his motion in the supreme court, to obtain the money, or take such other steps to collect it as he may deem proper.

      Le Grand Marvin, the appellant, in person.

      J. Rhoades, for the respondent Ellwood.

      D. Greig, for the defendant Titus.
   The Chancellor.

I agree with the vice chancellor, that there is such evidence' of collusive conduct, on the part of the complainant in this suit, to aid the claim of the defendant Titus, at the expense of the interest of his own client, that if no other objection existed, this bill of interpleader ought not to be sustained. A party who comes into this court as a complainant, in a simple bill of interpleader, must not have lent himself in any way to further the claim of either party to the fund in controversy, or to aid one in obtaining the possession thereof to the exclusion of the other. A person who is in possession of a fund, which is claimed by two different parties standing in the same relation to him in respect to such fund, may indeed receive an indemnity which is tendered to him by either, and may pay over the fund to the person giving such indemnity. But upon doing so, his right to file a bill of interpleader is of course determined. And a simultaneous offer to both claimants, to pay over the fund to either who will fully indemnify him, and save the expense of filing an interpleading bill, would not be considered collusion in case both neglected or refused to give him such indemnity. If both consented to give such indemnity, he could safely receive it from either. For the giving of the indemnity would relieve him from the necessity of, filing a bill of interpleader, and the question of collusion would never arise. Here, it is impossible, from the whole proceedings, and testimony in the cause, to resist the conclusion that the complainant was anxious to aid the defendant Titus in obtaining the proceeds of the judgment in controversy ; after the demand made upon him at Buffalo, by the agent of Ellwood. ,

I agree with the vice chancellor also, in thinking that the relation which an attorney bears to his client, will not permit him to file an ordinary bill of interpleader, upon every claim made to the fund collected by him for his client. It is the duty of an attorney who collects money, for a client, to pay it over to such client whenever he can do it with safety. Even where there is a doubt whether the securities upon which the money was collected did in fact belong to his client, all that he has any right to ask is an indemnity from his client. And if he is not satisfied with the responsibility of his client, it is his duty to tell him so, and to offer to pay him the money, if his client is willing to give such indemnity. Whether, under any circumstances, this court 'would sustain a bill by an attorney, against his client and a stranger, where the client was wholly irresponsible and refused to indemnify the attorney against the claim of a third person which, was apparently well founded, I am not prepared to decide. To , sustain such a bill, the complainant must at least show that he has good reason to believe that the adverse claim is well founded, and that- there is no possibility of protecting him-' self from loss by any other means than by the interference of this court. That, however, is not this case. Here there was no offer by the complainant to pay over the money to his client upon being indemnified against the claim of Titus. On the contrary, the attorney-studiously avoided any intimation to his client that he would pay him his money upon any terms.

I speak of Ellwood as the client of Marvin, because the suit against the sheriff was prosecuted for his benefit, after the notice of the assignment by Asa Farr, the original plaintiff in the suit. By that assignment, and the notice thereof which was given to the complainant, the relation of attorney and client between Marvin and Farr, ceased to exist; and the latter was not liable t.o the attorney for the costs of the subsequent proceedings. The subsequent prosecution of the suit, and the receiving the money from the defendant, upon the judgment subsequently recovered, was in the character of attorney for the assignee. A different question might perhaps have arisen, if Asa Farr had attempted to repudiate the assignment as having been obtained by fraud, or as being invalid for any other cause. In that case, the attorney, if he had not recognized either as his client subsequently to the alleged assignment, might perhaps have been in a situation to file a bill of interpleader; as standing in the same privity to each — to Farr the nominal plaintiff, by virtue of the original retainer — and to Ellwood by the alleged assignment and transfer of the subject matter of the suit. I am inclined to think, however, that in such a case the court in which the suit was pending at the time of the alleged assignment, would have had the power, if both the parties who claimed to be the real plaintiff were within its jurisdiction, to settle the matter between them, so far as was necessary to protect the attorney ; by directing the money to be brought into court, and by restraining the real as well as the nominal plaintiff from molesting him on account thereof. To that extent, I presume the supreme court has jurisdiction over its suitors. But it probably had no such power over the defendant Titus, who was not a party, in fact or in interest, in the suit in that court.

A bailee or agent who has received property, as such, is at all times at liberty to show that his bailor or principal has parted with his interest in the property subsequent to the bailment, or to the delivery to the agent. But such bailee or agent cannot, at law, dispute the original title of the person from whom he received the property. And Mr. Justice Story, after an examination of the cases upon the subject of interpleader, arrives at the conclusion that the same principle applies to this court; and that a bill of interpleader cannot be maintained by the bailee, or agent, to settle the conflicting claims of the bailor, or principal, and a stranger who claims the property by a distinct and independent title. (2 Story's Eq. 122, §§ 816, 817.) Although some of the decisions cannot well be reconciled with this principle, I think he is right so far as regards a strict bill of interpleader. And if so, upon the same principle, an attorney cannot sustain a bill of interpleader, to settle the -claim to money which he has collected for his client, where a mere stranger claims the money, upon the ground that the security upon which the money was collected was originally obtained by the client wrongfully.

I am satisfied, therefore, that this bill was improperly filed, and that the decree of the vice chancellor, directing it to be dismissed, with costs as to Ellwood, is not erroneous.

The decree must be affirmed with costs as to the respondent Ellwood; who alone asks for costs upon this appeal.