text:
    Bartlett vs. Gale and others.
    Where the complainant had a mortgage upon the land of G. for $1500, which Sand was previously encumbered by two judgments, and another mortgage which was prior to the judgments, and J. G. with full knowledge of the several encumbrances, purchased the land under an execution issued upon the junior judgment, and bid therefor $2000 more than the amount of such judgment, but much less than the real value of the land, and, instead of paying the surplus money to the sheriff; retained it in satisfaction of other claims against the mortgagee, who was the defendant in the execution, and took from him a discharge to the sheriff for such surplus, and thereupon received the sheriff’s deed for the land: Held, that J. G. purchased the land subject to the lien of the prior mortgage and judgment, and that the complainant, as the subsequent mortgagee, was entitled to the surplus money arising from the sheriff’s sale, or so much thereof as was necessary to pay the amount due on his mortgage : Held, also, that the surplus money which had not been paid to the sheriff by the purchaser, was an equitable lien upon the land, in his hands, to the extent of the complainant’s mortgage.

      A mortgage being a specific lien upon the mortgaged premises, if such premises are sold under a prior judgment the lien of the mortgage attaches upon the surplus mpnies in the hands of the sheriff, who has no right to pay such surplus to the mortgagor; and if the purchaser is permitted to retain the surplus monies in satisfaction of an antecedent debt due from the mortgagor, he takes it subject to the specific lien of the mortgagee, although he has neither actual or constructive notice of the mortgage.
    Where an answer on oath is waived, the answer is not evidence in favor of the defendant for any purpose ; but as a pleading, the complainant may avail himself of admissions and allegations contained therein which establish the case made by his bill.
    August 5.
    The bill in this cause was filed in June, 1830, to obtain payment and satisfaction of the balance due upon a bond ' and mortgage given by G-. B. Gale and wife to J. Lambe, in' October, 1837. The mortgage, as originally given, included a tavern stand in the county of Washington, and a farm in the county of Orange; and was conditioned for the payment of $4000, with interest. By a written agreement between G. B. Gale, T. Tole, junior, and J. Lambe, previous to the death of the latter who died in August, 1829, $2500 of the. mortgage was assigned to Tole, which sum was to be and remain a lien upon the tavern stand exclusively; and the residue of the bond and mortgage, which still belonged to Lambe, was to be and remain a lien upon the farm in Orange county only. To this last part of the bond and mortgage the complainant became entitled, under the will of J. Lambe, his father-in-law, and with the assent of the executors. And there remains unpaid thereon $1500, together with the interest from the first of February, 1828; except $100, which was paid to the complainant, on account of the interest, in October, 1829. When this mortgage was given, the farm in Orange county was encumbered by a mortgage of $1500, given to H. Westervelt, in January, 1822, and subsequently assigned to D. Vallance. There were also two judgments against G. B. Gale, in the supreme court. The first of which judgments was in favor of D. Bailey, for the sum of $180,97; and was assigned to James Gale, one of the defendants in this suit, in April, 1825. The other was in favor of J. Williams, for the sum of $681,87, and was docketed the 20th of February, 1826. An execution was issued upon this last judgment, upon which the farm in Orange county was sold by the sheriff, In February, 1880. James Gale, a brother of the mortgagor, became the purchaser, for the price or sum of $3100; leaving a surplus, beyond the amount due on the execution, of more than $2000. For this surplus G. B. Gale, the defendant in the execution, gave a discharge to the sheriff immediately after the sale, although no part of it was in fact paid. And the sheriff gave a certificate, in the usual form, that J. Gale had become the purchaser of the premises on the execution, for the sum of $3100, that being the highest bid for the same.
    By the answer of the defendants, their oath to which was waived by the complainant in his bill, they admitted the principal facts stated in the bill. But the defendant J. Gale insisted that the fair value of the farm at the time of the sheriff’s sale did not exceed $4000; and that he was entitled to deduct from the sum bid, the amount of all liens which were prior to the judgment under which he purchased, and all sums due to him from G. B. Gale, the defendant in the execution. The cause was heard upon the pleadings and proofs.

      A. L. Jordan, for the complainant.
    The complainant had a lien on the money produced by the sale of the farm to the same extent that he had upon the farm itself prior to the sale. This principle is settled in Belcher v. Butler, (Eden’s R. 530,) and recognized upon its broadest ground in Astor v. Miller, (2 Paige's Rep. 68.)
    James Gale is chargeable with the amount of his bid, to the extent of the complainant’s mortgage, after paying off the judgment upon which the same was sold. He bought only the right and title of G. B. Gale, subject to the first encumbrances.
    The complainant’s lien is not divested or affected by the claim which James Gale had against Gilbert B. Gale. The doctrine of taching securities is of very questionable equity, at the best, but has never been applied to any c,p-=c at all like the present. James Gale, in order to tach tn"s demand to the legal title acquired by him under th2 sale upon Williams’judgment, must have shewn, 1. Tnat he had a specific lien upon the farm for his demand by mortgage; a lien by virtue of a judgment even woi’Ai not have been sufficient. It must appear that the party lends his money upon the credit of the land, in order to entitle him to tach his lien for that money to a first lien, so as to “ squeeze out” an intermediate mortgage. (Brace v. Dutchess of Marlborough, 2 Peere Wms. 491 ; reported also in Mosely. page 50. Mouet v. Paske, 2 Atk. 53, Anon. 2 Ves. 662. Brereton v. Jones, 1 Eq. Cas. Abr. 325. pl. 10. Hameston v. Rogers, 1 Ves. jun. 513. Fethergill v. Kendrick, 2 Vern. 234.) 2. That his subsequent lien was created without notice either actual or constructive of the intermediate lien. (Brace v. Dutchess of Marlborough, 2 Peere Wms. 491. Wortley v. Birkbeach, 2 Ves. 571.) Now, in the present case, James Gale had no lien whatsoever; his demand was an unliquidated, simple contract demand, and much of that accrued after the complainant’s mortgage was executed and duly registered. The arrangement between Gilbert B. Gale and James Gale* by which the former released the latter from the payment of the surplus monies, was a fraud upon the complainant. But ihdependent of any actual fraud, the arrangements between the two Gales cannot affect the complainant’s rights.
    The law charges the land, in the hands of James Gale, with the prior encumbrances. He cannot allege a mistake of the law. He cannot retain the surplus upon the ground of appropriating it, previous to the service of the injunction, to the payment of an antecedent debt due him. But James Gale, having actual or constructive notice of the complainant’s mortgage, by its registry, would not have been authorized to have paid over the surplus to G. B. Gale.

      S. J. Wilkins, for the defendants.
    The defendant James Gale is obliged to account for nothing beyond the value of the farm. He is to be credited with the amount of the encumbrances prior to the judgment under which he purchased, and of his demands against G. B. Gale. James Gale ought not to be compelled >0 restore the monies paid to him. He had á right, at least, to retav* the amount of the judgment assigned to him, and all sums expenda as agent of G. B. Gale, in the management of the farm, and lot interest paid on prior encumbrances. He had a right also to tack his other claims to the judgment. James Gale can only be compelled to account for ¿fee amount of his bid, after deducting the prior encumbrances. After the sale, the lien of the complainant was upon money; which equity cannot follow, unless it can be distinguished from other money. (Whitcomb v. Jacob, 1 Salk. 160. 5 T. R. 227.) Before the service of the injunction, the surplus had been appropriated to the payment of G. B. Gale’s debt to James Gale. The right of the latter thus being vested, equity will not divest it.
    A very slender agreement for allowing one debt out of another will make it a payment. (Jeffs v. Wood et al., 2 Peere Wms. Rep. 128. Scott v. Surman, Willes’ Rep. 400.) The equities of James Gale and of the complainant are equal; and the former, by liis superior vigilance, having obtained payment of his debt, the maxim melior est conditio possidentis will apply. (Adams v. Dyer, 8 Johns. Rep. 268. 11 Idem, 228.)
   The Chancellor.

The defendants’ counsel is wrong in supposing that the whole answer must be taken together as evidence, and that the complainant cannot avail himself of the admissions in one part of it, without being also bound by the statements and allegations in other parts of the same answer. This is not so, even where the complainant calls for an answer on oath; except as to those parts of it which are responsive to the bill. But where an answer on oath is waived, although as a pleading the complainant may avail himself of admissions and allegations in the answer which go to establish the case made by the bill, such answer is not evidence in favor of the defendant for any purpose.

There is no doubt., in this case, as to the complainant’s right to the surplus upon the sheriff’s sale beyond the amount which was due on the execution ; or to so much of such surplus as will be sufficient to pay the amount of his mortgage. The mortgage was a specific lien upon the land; and that being sold under a prior encumbrance, the lien of the mortgage attached upon the surplus monies raised on that sale. The sheriff had no right to pay such surplus monies to G. R Gale, the mortgagor, or to discharge the purchaser from the payment thereof, on his order, when he knew that the complainant had a specific lien thereon by virtue of his mortgage. According to the decision of the court for the correction of errors, in the case of Astor v. Hoyt, (5 Wendell’s Rep. 603,) the mortgagor in possession is to be considered as the real owner of the land, subject to the specific lien of the mortgage. He might therefore discharge the surplus monies arising on the sale, except that part thereof upon which the complainant’s mortgage was a specific lien ; or he might assign the surplus to the purchaser, as was done in this case, in payment of antecedent debts. But the purchaser takes the surplus charged with the prior equity of the specific lien of the mortgage thereon. It is not pretended in this case that J. Gale, the purchaser at the sheriff’s sale, was ignorant of the complainant’s lien upon the surplus by virtue of his mortgage ; although it is probable he thought he could deprive him of his equitable rights by getting a discharge from the mortgagor for such surplus. And the registry of the mortgage was a constructive notice to every person dealing with G. B. Gale as. the owner of the farm, or as entitled to the surplus monies arising on the sheriff’s sale. Again; as J. Gale was permitted to retain the surplus monies in satisfaction of pre-existing debts merely, he would not be entitled to retain it as against the complainant’s specific lien, oven if he had neither actual or constructive notice of such lien. (Coddington v. Bay, 20 John. Rep. 637.) And the surplus monies in this case never having been paid by the purchaser, they are an equitable lien upon the land, in the hands of J. Gale, to the extent of the complainant’s mortgage.

The defendant, J. Gale, has no legal or equitable claim to have the encumbrances on the farm, which were prior to the judgment under which he purchased, deducted from the amount of his bid. He knew of the existence of the Westervelt mortgage, and was himself the owner of the Bailey judgment at the time of the sale. He therefore bid with the full knowledge that the land in the hands of the purchaser would be liable for the payment of those encumbrances. The deputy who sold the property swears he thinks that J. Gale supposed the prior encumbrances were to be deducted from the amount of his bid. But the facts testified to by this witness show that J. Gale himself did not so understand it; for, at the time he was bidding on the farm, he said there was a mortgage in New-York of about $1500, which he should have to pay off. This was undoubtedly said to prevent others from running up the property ; and is wholly inconsistent with the idea that he supposed the purchaser was to have the amount of the mortgage deducted from his bid. And the certificate of sale, executed by the sheriff and filed in the clerk’s office, is conclusive to show that at the time of the sale he did not put up the property for sale upon the condition that the prior encumbrances were to be paid out of the purchase money; as the certificate was given for the whole amount bid, leaving the prior encumbrances a lien upon the premises, to be paid by any creditor who might wish to redeem, in addition to the $3100 mentioned in the sheriff’s certificate. The giving such a certificate would be a fraud upon creditors having a right to redeem, if the sheriff did in fact sell the property upon the condition of having the prior encumbrances paid out of the purchase money. The certificate is the only legal evidence, which has been given in the present case, as to the terms of the sale, or the actual amount of the bid. And the sheriff’s present supposition as to what the purchaser then thought, cannot now be received to falsify his official certificate, given at the time of the sale. If the farm was put up for sale on the condition that the prior encumbrances were to be paid out of the purchase money, Horton and Dunning, who were bidders, would undoubtedly have recollected the fact; as it was out of the usual course on such sales. The defendants did probably suppose they could so manage in relation to the surplus monies as to defeat the complainant’s equitable right to have his mortgage satisfied out of the same. But from the evidence in the case, I do not believe J. Gale bid upon the farm under the supposition that the purchaser was to take it discharged of the previous liens, or that they were to be paid out of the purchase money bid on the sale.

There must be a decree in favor of the complainant, declaring the amount due on his mortgage to be a specific lien upon the surplus of the bid at the sheriff’s sale, after deducting from the amount of the bid the balance of the execution which had not been satisfied by the sale of the personal estate; and that the purchase money, to the extent of the complainant’s lien thereon, not being paid or otherwise secured, it is an equitable lien upon the farm in the hands of the defendant J, Gale, and is entitled to a preference in payment over the debts due from G. B. Gale to J. Gale, which were neither a specific or a general lien upon the farm at the date of the complainant’s mortgage. It must be referred to a master to compute the amount due to the complainant for principal and interest on his mortgage; and the defendants must pay the amount reported due, and the interest thereof, within twenty days after the confirmation of the master’s report, together with the costs of the complainant in this suit. And in default of such payment, the farm, or so much thereof as may be necessary to pay the amount reported due, with interest and costs, may be sold by a master for that purpose.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    The Trustees of the village of Watertown and F. W. White vs. Cowen & Bagg.
    The corporators and trustees of a municipal corporation are competent witnesses in behalf of the corporation.
    Where the owners of land in a city or village lay out such land into lots with streets and avenues intersecting the same, and sell the lots with reference to such streets and avenues, they cannot afterwards deprive their grantees ■of the benefit of having such streets and avenues kept open; and the same principle is applicable to a similar dedication of urban lands to be used as an open square or public walk.
    Where lands are dedicated to the use of the inhabitants of a city or incorporated village for a public square, a bill maybe filed in the name of the corporation to restrain the erection of a nuisance thereon, or to protect the equitable right of the corporators to the use of the public square as such.
    A grantee of a lot adjoining a public square, who has a special covenant from the original owner of the square, that it shall be kept open for the benefit of his lot, may also file a bill in equity to restrain the grantor from violating the covenant, and may join with the corporation in such a suit.
    A covenant in a deed of land, not to erect a building on a common or public square owned by the grantor in front of the premises conveyed, is a covenant running with the land, and passes to a subsequent grantee of the premises without any special assignment of the covenant.
    The objection of a misjoinder of parties, complainants, should be taken either by demurrer or in the answer of the defendant; it is too late to urge a formal objection of this kind for the first time at the hearing.

      This was an appeal from a final decree of the vice chancellor of the fifth circuit, perpetually enjoining the defendants from building upon the public square, or upon Mill street, in the village of Watertown. The complainants claimed that the place where the defendants had commenced the erection of buildings, was partly upon one of the public streets or highways of the village, called Mill street, and partly upon a public square which, as they alleged, had been dedicated to the public for the use of the village, as an open space or mall, by the original proprietors. The bill was originally filed in the equity court of the fifth circuit; and upon the coming in of the answer the defendants moved to dissolve the injunction. The application was denied by the circuit judge; and from his decision the defendants appealed to the chancellor. That appeal was pending and undetermined when the cause came on for a final hearing before the vice chancellor of the fifth circuit, upon the pleadings and proofs; and from the decree then made, affirming the former decision, the defendants again appealed to the chancellor.
    August 5.

      J. Edwards, for the complainants.
    The public square in question was expressly dedicated to the public use by the proprietors of the soil, in 1805. This dedication was made by the aid and with the assent of Cowen, and was repeatedly recognized and confirmed by him during the whole period between that time and the year 1829. An express dedication to the public cannot be resumed again. (1 Wendell, 268. 2 id. 472. 8 Id. 85. 5 Taunt. 125. City of Cincinnati v. Lessee of White, 6 Peters’ Rep. 431.)
    The erection of the frame building in question is an encroachment on the rights and property of the village, and the trustees are the proper parties to prosecute for the offence, (Laws of 1820, p. 149, § 4. Eden on Inj. 157.)
    The covenant to Hersey, which had been assigned to White, has been clearly violated by the defendants, and a perpetual injunction is the proper remedy. (Miller v. Hill, 3 Paige’s Rep. 254.)
    The trustees and White, having a common interest, may unite in bringing the suit. The inhabitants and trustees of the village of Watertown, who were sworn as witnesses, were competent witnesses in behalf of the complainants. They had no private interest in the subject in controversy. (Starkie’s Ev. 427, pt. 4. 2 Livermore, 281. 1 Vent. 351. Peake’s Cas. 163. 9 John. R. 220. Cornwall v. Heam, 1 Day, 35. 7 Mass. Rep. 398. Swift’s Ev. 57. Phil. Ev. 57, 58, note, ed. of 1820. Smith v. Baker, 1 Root, 207. 14 Mass. Rep. 296. 2 R. S. 552, § 25. 1 Id. 384, § 4, and p. 420, § 88. Polland v. Scott, Peake’s N. P. Cas. 18. Jacobson v. Fountain, 2 John. Rep. 170. 2 Starkie’s Ev. 745, 781, pt. 4. 5 Conn. Rep. 416. 1 N. Hamp. R. 273, 353. 1 John. Rep. 486. 12 Id. 285. 1 Cox’s Rep. 189, 190. 1 South. Rep. 186. D. Chip. Rep. 250. 2 John. Ch. R. 626.)
    Jlf. T. Reynolds, for the defendants.
    The power of the trustees as commissioners of highways having been taken away, they have no right as trustees in the premises in question, and have no more right to interfere to prevent an encroachment thereon than any private individual. The trustees and White are improperly joined as complainants, having no common interest in the subject matter of the suit. White is not entitled to equitable relief; his remedy is at law. The covenant with Hersey has not been broken. The corporation of the village of Watertown are not authorized to have squares, public commons, parks, &c.; they can therefore acquire no such possessions by prescription or implied dedication. The building on the premises in question does not interfere with the public right of way, or with individual enjoyment. The corporation can have no relief in equity for the grievance complained of in their bill. The remedy for nuisances is by information in the name of the attorney general, or by an indictment. An injunction should not have been granted until the question of right was determined at law. (M’Farland v. M’Dowell, 1 N. Car. L. Rep. 110. 4 Price, 327. Eden, 86. 1 John. Ch. R. 211. 2 Id. 202. 4 Id. 26. 1 Hopk. Rep. 410. 4 John. Ch. R. 21, 22. Dickens, 599. 6 Ves. 51. 3 John. Ch. R. 282. 3 Pick. R. 408 to 413. 2 Id. 57. 4 Har. & John. 278. 3 Stark. Ev. 1216. 1 Price, 247. 3 East, 294. 3 Stark. Ev. 1215. 2
      Saund. 175. Cowper, 102. 3 Siark. Ev. 1214, 1219, 1244. 2 Wendell, 13. 4 Hen. & Munf. R. 474. 1 Dick. 163.)
   The Chancellor.

The decision of the vice chancellor was correct in refusing to suppress the depositions of Huntington, the trustee, and of the other witnesses who were inhabitants of the village of Watertown. The remote and contingent interest of a corporator in a mere municipal corporation, is not sufficient to exclude him as a witness in behalf of the corporation. And Huntington, the trustee, although an agent of the corporation, has no other or greater interest in the event of a suit, brought in its corporate name, than any other inhabitant of the village. The corporation, and not the trustee of the corporation, is the party to the suit.

In this case, I am satisfied from the evidence, that the public square in the village of Watertown was dedicated to the use of the inhabitants of the village, by Coffeeu and the defendant Cowen, the original proprietors, as early as 1806. The recent cases in the supreme court and in the court for the correction of errors, relative to the dedication of lands in the city of New-York for the purposes of streets, have settled the principle, that when the owners of urban property have laid it out into lots, with streets and avenues intersecting the same, and have sold their lots with reference to such a plat, it is too late for them to resume a general and unlimited control over the property thus dedicated to the public as streets, so as to deprive their grantees of the benefit they may acquire by having such streets kept open. And this principle is equally applicable to the case of a similar dedication of lands, in a city or village, to be used as an open square or public walk. The case'of The City of Cincinnati v. The Lessee of White, (6 Peters' Rep. 431,) in the supreme court of the United States, is in this respect very much like the one now under consideration. In that case the equitable owners of a tract of land, before they had perfected their tille thereto by a patent from the government, laid out a part of the tract into a town, which now constitutes the scite of the city of Cincinnati. And upon the plat of such town they laid out and designated a part of the land as a public common, or open square, for the use of the inhabitants of the town. This was held to be a sufficient dedication of the land to the public, to vest the title to this common, or public square, in the city of Cincinnati; although the city was not incorporated until many years afterwards.

It is objected that the present suit is not properly brought in the name of the corporation of the village of Watertown. The usual mode of proceeding in this court to restrain the erection of a nuisance, or any other unwarrantable intrusion upon or interference with the rights of the public, is by an information in the name of the attorney general. But in the case of the public square in the city of Cincinnati, the supreme court of the U. S. held that the right to the land vested in the corporate body, for the benefit of the citizens, upon the incorporation of the city. And although I do not feel disposed to go the length in this case of holding that the legal title to the land is vested in the corporation of the village, yet I can see no valid objection to considering the corporation as the proper representative of the equitable rights of the inhabitants of the village to the use of the public square, so as to authorize the filing of a bill by the corporation,in this court, to protect those equitable rights against the erection of this nuisance. The court of chancery in England granted an injunction upon the application of the corporation of the city of London, to prevent a nuisance by which the lives of the citizenswould be endangered. (The Mayor, &c. of London v. Bolt, 5 Ves. 129.) And in the state of North Carolina, a decree for a perpetual injunction, to restrain the erection of a nuisance which would endanger the health of the town of Tarborough, was made upon a bill filed by the attorney general and the inhabitants of the town, jointly, (The Attorney General and others v. Blount, 4 Hawk’s R. 384.)

The covenant in the conveyance to Hersey, not to erect or suffer to be erected, any tenement, edifice or structure on the street, highway, or common, owned by the grantor in front of the premises conveyed, was a covenant running with the land. It was the grant of a privilege, or easement, which passed to White under the conveyance from Hersey to him; and no separate assignment of the covenant was necessary to transfer all Hersey’s interest therein. And this court has ah ¡ready decided that the grantee of such an easement is entitled ■to an injunction, to restrain the owner of the servient tenement from erecting buildings thereon in violation of his covin ant. (Hills v. Miller, 3 Paige’s Rep. 254.) I do not understand this covenant as only intended to prevent the erection of a tenement or building directly in front of the Hersey lot. The agreement, according to my construction of it, is, that the grantor will not erect buildings, or suffer them to be erected, on the common or public square, which is in front of the premises conveyed. Under such a covenant the present owner of the Hersey lot has a right to insist that the whole public square shall be kept open; as the existence of such an open space in a populous village must of course enhance the value of the lots fronting on the same. And, if the owner of the public square had already dedicated it to the public, no special covenant was necessary to authorise his grantees to insist that it should be kept open for their benefit or their assigns.

If each of the complainants had a right to file a bill to restrain the erection of this nuisance, as they had a common right and the injury was the same or common to both, I see mo valid objection to their joining in one suit. But even if there was a misjoinder, the objection should have been made by demurrer, or in the answer of the defendants. It is too late to urge a mere formal objection of this kind for the first time at the hearing. The decree of the vice chancellor is therefore affirmed, with costs.

The whole case being thus disposed of on the merits, it would be useless to spend the time of the court in examining how far the case presented upon the bill and answer differed from that which is now presented upon the pleadings and proofs, with a view to the decision of the first appeal. For the sole purpose, therefore, of disposing of that appeal, the decision of which at this time can be of no use to either party except as to the mere question of costs, which in this case are in the discretion of the court, I shall direct the first appeal to he dismissed, and without costs.


text:
    Rogers, by her next friend, vs. Rogers.
    A feme covert cannot make a valid agreement with her husband for a separation, except under the -sanction of the court of chancery, and in a case where the conduct of her husband has been such as to entitle her to a decree for a separation.
    The law does not authorize or sanction a voluntary agreement for a separation between husband and wife ; it merely tolerates such agreements when made in such a manner as to be capable of being enforced by or against a third person acting in behalf of the wife.
    Where a bill is filed by the wife for a separation, and pending the suit the husband makes a separate provision for the wife upon a contract between them to live separate, the court will not enforce a mere verbal agreement to discontinue the suit founded upon such contract.
    August 5.
    This was an application, cn the part of the complainant, for an order against the defendant, her husband, for an allowance, for the purpose of enabling her to carry on this suit against him for a separation ; and also for an allowance for alimony pending the litigation. The application was opposed by the defendant, on the ground that the suit had been settled between him and the complainant, with the consent of her next friend; and that the parties had agreed to live separate, he having given a bond to a trustee, named by herself, to secure to her the payment of an annual allowance of $400 during her life, payable quarterly.

      A. Taber, for the complainant.

      J. Paine, for the defendant.
   The Chancellor.

Whether the settlement which was made between the complainant and her husband was a judicious and reasonable one, and one which would have been beneficial to her if she had thought proper to adhere to its terms and to comply with its conditions, is a question which it is not necessary for me to decide upon the present applica- , tion. It is evident, however, from the affidavits produced on the part of the defendant, that no fraud or imposition was practiced upon the complainant on the settlement; and that she entered into the arrangement voluntarily and understandingly, after consulting with her friends as to the terms of compromise which were proposed by the defendant. Although her brother, in whose name the suit was instituted as the next friend of the complainant, gave no written assent to the terms of settlement, he was undoubtedly consulted in relation to the propriety of the compromise of the suit; and he consented that the complainant should settle it in such way as she should deem proper.

But it is impossible for a feme covert to make any valid agreement with her husband to live separate from him, in violation of the marriage contract and of the duties which she owes to society, except under the sanction of the court; and in a case where the conduct of her husband has been such as to entitle her to a decree for a separation. The law of the land does not authorize or sanction a voluntary agreement for separation between husband and wife. It merely tolerates such agreements when made in such a manner that they can be enforced by or against a third person acting in behalf of the wife. In the ecclesiastical courts of England, where a jurisdiction exists to decree a restitution of conjugal rights between married persons, a deed of separation is no bar to a suit instituted for that purpose ; as the indissolubility of the marriage contract renders it impossible for the parties lawfully to release each other from the reciprocal duties which the relation of husband and wife implies. (Westmeath v. Westmeath, 2 Hagg. Eccl. Rep. App. 115.) Neither is a deed of separation a bar to a divorce. Sir William Scott, in delivering the judgment in the case of Mortimer v. Mortimer, (2 Hagg. Consist. Rep. 318,) says the court considers a private separation an illegal contract. It implies a renunciation of stipulated duties; a dereliction of those mutual offices which the parties are not at liberty to desert; an assumption of a false character in both parties, contrary to the real status persones, and to the obligations which both of them have contracted, in the sight of God and man, to live together until death; and on which obligations the solemnities both of civil society and of religion have stamped a binding authority, from which the parties cannot release themselves by any private act of their own, or for causes which the law has not pronounced to be sufficient, and sufficiently proved. In the present case the complainant has a right, to prosecute a suit for a legal separation from her husband, if he has been guilty of such conduct towards her as to render it unsafe and improper for her to cohabit with him, or if he has abandoned her without any justifiable cause and neglects or refuses to provide for her support, notwithstanding the agreement for a separation which is set up in the affidavits on the part of the defendant. And, as a necessary consequence, the bond for her support having become void,because the terms and conditions upon which it was given have not been complied with on her part, she must have an allowance for her support pending the litigation; and a reasonable advance must also be made to her for the necessary expenses of the proceedings. Such advance, however, is to be paid over to her next friend, in whose name the suit is prosecuted, upon his written stipulation to refund the same, under the direction of the court, if the complainant’s bill should hereafter be dismissed with costs, for want of prosecution, or on the ground that the suit was commenced without any reasonable or justifiable cause.

Although the agreement for a separation was not binding upon the wife, and could not be pleaded in bar to a suit against her husband, it was undoubtedly competent for her, with the consent of her next friend, to agree to a discontinu-' anee of the suit. I should therefore have considered the present suit as actually discontinued, and should have directed an order to be entered accordingly, without prejudice to her right to proceed anew, had not her counsel insisted upon the objection that the agreement to discontinue the suit was not in writing, as required by the 121st rule. That objection is well taken, as there was no agreement in writing to discontinue the suit subscribed by the complainant, or her next friend, or by their solicitor or counsel. And the compromise of the cause of action, by the agreement for a separation, being invalid, that furnishes no reason for considering the suit as at an end.

It must be referred to a master residing in the county of Washington, to report a suitable quarterly allowance for the support of the complainant pending this litigation, and a reasonable sum to be paid to her next friend for the expenses of the litigation. And upon the coming in and confirmation of the report, the defendant must pay over the allowance thus made by the master; the alimony to be paid to herself, and the allowance for the expenses of the suit to be paid to her next friend, upon his written stipulation as above specified. In ordinary cases, it would be proper to direct the allowance for alimony to commence from the time of presenting the petition ; but in this case, as the complainant received $350 under the agreement which she now repudiates, the allowance is only to commence from the 1st of July last.


text:
    Lansing & Allen vs. Caswell and others Trustees of the Village of Lansingburgh.
    Where a law, passed previous to the revised statutes, gave the trustees of an incorporated village the powers of commissioners of highways within the limits of the corporation, such powers must now be exercised in conformity to the provisions of the revised statutes. And from the decision of the trustees, in laying out, altering or discontinuing a road or highway, an ap= peal lies to tho judges of the county court.
    If a rcgviiar appeal is made from the decision of commissioners of highway s to the county judges, the commissioners cannot proceed and opon tire highway until the appeal is determined; although the judges refuse to proceed and decide upon tho same, under the supposition that they have not jurisdiction of tho case.
    But where the appellants, after such refusal of the judges, appeared before the jury ompannelled to assess their damages incurred by the laying out of the road, and litigated the question as to the amount of such damages; and subsequently applied to the board of supervisors to increase the amount of damages allowed by the jury, It was held, that they had thereby waived their appeal.
    The provision of the revised statutes, prohibiting the commissioners of highways from laying out a road through yards or enclosures, extends only to such yards and enclosures as are necessary to the use and enjoyment of the dwelling house or manufacturing establishment to which they are appurtenant ; and the statute must be construed in reference to the situation and nature of the property with which the yard or enclosure is connected.

      Whether the appearing before the jury of the owner of a yard or enclosure through which a road is laid out, and litgating his claim for damages, and subsequently appealing to the board of supervisors for an increased allowance for damages, does not amount to a legal consent to the laying out of such road, within the meaning of the statute ? Glusere.
    August 5.
    This was an application to dissolve an injunction, restraining the defendants from opening and regulating a street or highway, in the village of Lansingburgh, adjacent to the dwelling house of the complainants. The street was laid out in May, 1831, by the trustees of the village of Lansingburgh acting in the capacity of commissioners of highways under the act of the 7th of April, 1824, which authorized them to act as such commissioners, upon the certificate of twelve freeholders that such street was necessary ; and also claiming to act in their capacity of trustees of the village. And, by an ordinance of the board of trustees, made in November, 1832, the street was directed to be pitched and paved, and the side walks to be levelled. From the decision of the trustees, in laying out the street, the complainants appealed to three of the judges of the county courts of the county of Rensselaer. Those judges met, and after considering the matter, they decided that they had no jurisdiction to review the decision of the trustees in laying out the street, or road. They therefore dismissed the appeal. A jury was then empannelled to assess the damages sustained by the complainants by reason of the opening of such street; upon which occasion the complainants appeared, by their agent, and introduced evidence for the purpose of increasing the amount of the damages to be assessed by the jury. And at the meeting of the board of supervisors of the county of Rensselaer, in October, 1832, the complainants again appeared, by their agent, and gave evidence before that board for the purpose of obtaining from the supervisors an increase of the amount of damages assessed by the jury. But the board of supervisors, after viewing the premises and hearing the proofs and allegations as well on the part of the complainants as of the defendants, ratified and confirmed the assessment of damages as made by the jury; and caused the amount of such damages to be raised by tax, for the benefit of the complainants, as directed by the statute. In their bill, the complainants alleged, that in the original plat of the village, as made by the proprietor more than forty years since, the street ran to the west of the place where it was laid out by the trustees of the village, in May, 1831; and that the place where it was so laid out had been occupied and held as a court-yard and garden, for more than forty years. They therefore insisted that the trustees, acting as commissioners of highways, had no right to lay out a street or highway over the premises ; and that the appeal from their decision being still undecided, they had no right to proceed and open the street, even if they had authority to lay it out originally. The defendants, in their answer, denied that the premises where the street was laid had ever been cultivated as a garden, previous to the laying out of the street in 1831, or that the street was laid out through a yard or enclosure necessary to the use or enjoyment of the complainants’ dwelling house. They alleged, on the contrary, that that part of the enclosure had been cultivated as a potatoe patch merely. The defendants also stated in their answer, that the place where the street was laid out by the trustees acting as commissioners of highways, in 1831, was one of the original streets in the village, as laid out by the proprietor of the property more than forty years since; and that building lots had been conveyed by the proprietor bounding on such street. They therefore insisted that the premises in controversy had been dedicated to the public as a street; and that as a board of trustees they had a right to cause it to be opened, independent of the power given to them, as commissioners of highways, to lay out a new street.
    «á. Van Vechten, for the complainants.

      D. Buel, jrn. for the defendants.
   The Chancellor.

The third section of the act of the 7th of April, 1824, (Laws of 1824, ch. 176, p. 194,) gives to the trustees of the village all the powers of commissioners of highways, within the limits of the village; but such powers must be exercised in conformity with the provisions of the revised statutes. (See 2 R. S. 779, § 10, 11.) There was therefore an unquestionable right, on the part of the complainants’,, to appeal from the decision of the trustees, acting as commissioners of highways, in laying out and altering the road in question; and I cannot conceive upon what grounds the judges refused to take jurisdiction of the case. The act of April, 1824, does not, in terms, give an appeal from the decision of the trustees in laying out a road in the village; but it constitutes them commissioners of highways for that purpose. And the eighty-fourth section of the title of the revised statutes relative to highways and bridges, (1 R. S. 518,) gives an appeal to any person, conceiving himself aggrieved by any determination of commissioners of highways, either in laying out, altering, or discontinuing, or in refusing to lay out, alter, or discontinue any road. It was therefore the duty of the judges, to whom the appeal was made, to proceed and determine the question submitted to their decision; and the proper course for the trustees, if they wished to put an end to the controversy, was to apply to the supreme court for a mandamus to compel the judges to whom the appeal was made, to proceed and determine the appeal. It was competent, however, for the appellants to waive their appeal at any time before the judges had proceeded to act upon the same; and I think there has been such a waiver on the part of the complainants in the present case. The damages occasioned by the laying out of the road could not be assessed while a regular appeal from the decision of the commissioners of highways was pending and undetermined. If the complainants, therefore, had taken no part in the proceedings before the jury, or the board of supervisors, as to the assessment of those damages, they might now have insisted that the appeal was still pending, and that the assessment was void. But it would be manifestly inequitable and improper to permit them to litigate the claim to damages before the jury, and afterwards by an appeal to the board of supervisors as to the amount which should be raised for their benefit, and if they failed in obtaining the whole amount of damages claimed, then to turn about and repudiate the whole proceedings, on the ground that their appeal from the decision of the commissioners of highways was still in force.

'‘The appeal being waived, by these proceedings of the complainants upon their claim for damages, the road or street is properly laid out, unless it has been laid out through a garden which had been cultivated as such for four years, or through yards or enclosures necessary to the use and enjoyment of the mansion house of the complainants. This part of the case as stated in the bill, I understand to be fully denied by the answer. It is not every court-yard or enclosure which is appurtenant or contiguous to a dwelling house, or to a manufacturing establishment, through which the commissioners are prohibited from laying out a street or highway. It is only such yards or enclosures as are necessary to the use and enjoyment of the dwelling house, or the manufacturing establishment. Such was the extent of the decision of the supreme court in the case of Clark v. Phelps, (4 Cowen's Rep. 190.) And it was the intention of the revisers to embody the substance of that decision in the last clause of the fifty-seventh section of the statute on this subject. (See Rev. Rep. on ch. 16, p. 15.) This clause of the statute must be construed in reference to the situation and nature of the property to which the yard or enclosure is appurtenant. In the country, where there is abundance of vacant land which may be appropriated for the purpose of making roads, and where the public would be equally well accommodated by the laying out of the road through such land, it would be highly improper for the commissioners of highways to attempt to lay out a road through a court-yard, or enclosure, attached to a dwelling house or a manufactory, although such yard or enclosure was not absolutely necessary to its use or enjoyment; and such an attempt might be considered as a violation of the spirit of this clause of the statute. But in the case of urban property, like the present, where vacant ground for the location of streets is not so easily obtained, and where a particular location is frequently a matter of importance to that part of the community for whose accommodation the street or highway is principally intended, the restriction upon the powers of the commissioners must, from the nature of the property and the relative claims of the public and the individual landholder, necessarily be more limited, in order to conform to the spirit of the statute. In this case the street was laid through a yard, or enclosure, which was contiguous to the dwelling house of the complainants. But that part of the enclosure through which the street is laid cannot be said to be necessary to the use and enjoyment of the mansion, ac- ■ cording to the true intent and meaning of this provision of the revised statutes. Again ; the commissioners may lay out a street through any kind of property, with the consent of the owner thereof. And perhaps it might be successfully contended in this case, that the conduct of the complainants in urging their claim to damages before the jury, and in carrying the claim for an increased allowance bofore the board of supervisors, amounted to a legal consent to the laying out of the street in the place where it had been located by the trustees acting in the capacity of commissioners of highways. Omnis ratihabilio retro trahitur et mandato acquiparatur. (Coke Litt. 207.)

That part of the answer which sets up the right of the cor- . poration to the street, as it is now laid out, as one of the original streets of the village, laid out by the proprietor as such upon the village plat and subsequently recognized by the conveyance of building- lots bounded on the same, is not strictly responsive to the bill. It cannot therefore be sufficient of itself to entitle the defendants to a dissolution of the injunction at this time. But if the defendants are right as to the original location of this street by the proprietor, and the dedication thereof to the use of the inhabitants of the village, as stated in the answer, the fourth section of the act of April, 1824, appears to be sufficiently broad to authorize the trustees of the village of Lansingburgh to open the street as it was originally laid out by such proprietor, although the proceedings of the trustees in laying out the street, in May, 1881, under the general provisions of the revised statutes relative to roads and highways, should appear to be invalid.

The result of the conclusions at which I have arrived is that the injunction in this case must be dissolved.


author: The Chancellor

text:
    Haight & West vs. Case & Odell.
    Where the complainant waives an answer on oath, and relies upon the affidavits of third persons annexed to his bill to sustain an injunction, in opposition to the defendant’s answer on oath, denying the equity of the bill, the defendant, upon an application to dissolve the injunction, may also read the affidavits of third persons in support of his answer.
    If an answer on oath has not been waived as to one of the defendants, the complainant, upon an application to dissolve the injunction, cannot be permitted to read the affidavits annexed to the bill for the purpose of contradicting the positive answer of that defendant on oath.
    This was an injunction bill, and the complainant waived an answer on oath from one of the defendants, who was alleged to be insolvent, or in failing circumstances. He also annexed affidavits to his bill, in support of the charges contained therein and to sustain his injunction, as authorized by the 37th rule. Upon the coming in of the answer, which was on oath and denied the material allegations in the bill;
    August 6.

      J. Rhoades, in behalf of the defendants,
    moved to dissolve the injunction. And he offered to read affidavits, in support of the answer of the defendant whose answer on oath had been waived, contradicting the affidavits annexed to the complainants’ bill.

      T. R. Lee, for the complainants,
    objected to the reading of affidavits in opposition to those annexed to the bill. And he insisted that affidavits could not be; read in support of the answer, on a motion to dissolve an injunction, in such a case.
   The Chancellor

decided, that where the complainant relies upon the affidavits of third persons, in support of the allegations in his bill, for the purpose of retaining an injunction in opposition to the answer of the defendant on oath denying such allegations, the defendant must also be permitted to use such affidavits in support of his answer, to counterbalance the ex parte evidence thus adduced by the complainant in opposition to the answer. He also decided that the affidavits annexed to the bill could not be read to contra-diet the positive answer of one of the defendants, whose answer on oath had not been waived, relative to matters of which the other defendant was not charged with the knowledge.


text:
    Vroom vs. Ditmas and others.
    Where D., the owner of premises which were subject to the encumbrance of a mortgage given by a previous owner, gave two mortgages to the complainant, and afterwards a judgment was recovered against D. in favor of V. H., and the premises were then sold under a statute foreclosure of the prior mortgage, and V. H. afterwards took a conveyance from the purchaser, and then conveyed the premises to S. with warranty; Held, that the purchase of the premises by V. H. under the statute foreclosure and the subsequent conveyance with warranty, operated as a release and extinguishment of his right to redeem the premises by virtue of his judgment; and that S. took the whole legal and equitable title to the land, subject only to the right of the complainant to redeem by virtue of his mortgages, if the amount due thereon was not paid.
    The effect of a statute foreclosure is to transfer, to the purchaser, the right of the mortgagee to the extent of his claim or interest in the mortgaged premises for the security of his debt, and also to transfer to the purchaser so much of the equity of redemption as is not vested in subsequent mortgagees, nor bound by the lien of subsequent judgments.
    A subsequent mortgagee who seeks to redeem, from the purchaser under a statute foreclosure of a prior mortgage, is not bound to pay the costs of such foreclosure; which foreclosure as to his rights is wholly inoperative.
    Where the holder of a mortgage against D. which was not yet due, offered to make a large discount if payment should be made immediately, and D. not being able to procure the money himself, agreed with the complainant that he should raise the amount and take an assignment of the mortgage to himself, and should have a part of the discount for his services in obtaining the money; Held, that such agreement was not usurious, and that a mortgage subsequently given" by D., which included the complainant’s share of such discount, was valid.
    If the security upon which a suit is instituted is a mortgage or other specialty, the defendant cannot avail himself of a defence of usury, under a general answer denying the complainant’s right, as claimed by the bill. But the defence of usury must be distinctly set up in the plea or answer of the defendant; and the terms of the usurious contract must be distinctly and correctly set out. The proof must also correspond with the allegations in the plea or answer.
    The owner of the premises, against which an usurious mortgage is attempted to be enforced in the court of chancery, must himself set up the defence of usury in his answer. He cannot avail himself of a defence set up in the answer of a co-defendant from whom he purchased, who has no interest in or lien upon the mortgaged premises, and who is not a necessary party to the suit.
    As a general rule, a party coming into a court of equity to redeem, pays costs to the defendant, although he obtains the relief prayed for; yet if the defendant improperly resists the claim of the complainant to redeem, he will be refused his costs, and may be compelled to pay costs to the adverse party, in the discretion of the court.
    This was an appeal from the decree of the vice chancellor of the seventh circuit. In March, 1811, Elkanah Watson, who was the owner of about 80 acres of land in the county of Seneca, conveyed the same to J. Arnold & S. Day, and took back a bond and mortgage to secure the payment of the purchase money. Arnold & Day afterwards, conveyed the land to W. Brundage, subject to the mortgage. In March, 1818, Brundage conveyed to Abraham Ditmas, one of the 'defendants in this suit, and took back a bond and mortgage to secure the purchase money; Ditmas agreeing to pay off the balance due on Watson’s mortgage, which was to be allowed towards such purchase money. On the 12th of October, 1818, Ditmas and wife mortgaged the land to Peter Vroom, the complainant, to secure the payment of $312, and interest; and, on the fifteenth of the same month, they gave to the complainant another bond and mortgage upon the same premises to secure the payment of $690 in one year, with interest from the 10th of November then next. There being about 35 dollars remaining due upon the mortgage to Watson, that mortgage was foreclosed, against Ditmas and ■wife, by a statute foreclosure ; and upon the sale, on the 24th of June, 1820, J. W. Bacon became the purchaser, for the price or sum of twenty dollars which was the highest sum bid for the .same. A deed was executed to Bacon, under the statute foreclosure; and on the same day he conveyed the premises to the defendant, W. C. Van Horne, by a quit claim deed, for the nominal consideration of one dollar. The purchase money in fact paid, however, upon such conveyance to Van Horne, was 85 dollars; the amount due on the Watson mortgage and the costs of foreclosure. At the time of the statute foreclosure, Van Horne had a judgment against Ditmas for $86,40, recovered in the Seneca county common pleas, in July, 1819, which was a lien upon the equity of redemption of Ditmas in the premises. In February, 1822, Van Horne conveyed the land to Peter Smith for the sum of $1060, with warranty. The complainant, as a subsequent mortgagee whose mortgages were not affected by the statute foreclosure of the. prior mortgage to Watson, applied to Smith and to Van Horne to redeem the premises. And he offered to pay not only the amount due on the prior mortgage, but also the costs of such foreclosure; but his application was refused. The complainant thereupon filed his bill in this cause, against Ditmas and wife, Van Horne, and Smith, setting forth these facts, and praying that the defendants, or some of them, might be decreed to pay the amount due on his two bonds and mortgages, or that he might be permitted to redeem.

      August 19.

      Ditmas and wife did not answer, but suffered the complainant’s bill to be taken as confessed against them. The defendant Smith put in an answer, claiming to be the owner of the premises as a bona fide purchaser thereof from Van Horne who conveyed to him with warranty. Van Home also put in an answer, claiming a lien on the premises by virtue of his judgment against Ditmas. He admitted the execution of the several bonds and mortgages, deeds and conveyances mentioned in the complainant’s bill, but insisted that the $690 mortgage to the complainant was usurious and void, $100 having been included therein for the extra interest or premium on the loan or forbearance of $590 for one year. Replications were filed to these answers, and the proofs in the cause were taken, and closed. Subsequently to the closing of the proofs, the defendant Peter Smith died, and the suit was afterwards revived against his personal representatives, and his heirs and devisees. The cause having been heard before the vice chancellor, upon pleadings and proofs, he decided and decreed that the $690 mortgage was usurious and void, and that the mortgaged premises should be released from the same; that the $812 mortgage was a valid lien on the premises, and that the complainant had a right to redeem the same upon paying the balance due on the Watson mortgage, with interest, and the costs of foreclosure under the statute. A reference was therefore ordered to ascertain the amount (áue on the Watson mortgage; upon which reference the master was directed to credit the amount, including interest and the costs of the statute-foreclosure, to the defendant Van Horne, and to charge him with the rents and profits of the premises from the time he took possession, after deducting from such rents and profits the value of all permanent beneficial improvements made by him. And it was decreed that the balance, if any, which should be found due on the Watson mortgage should be paid to Van Horne. The master was also decreed to ascertain and report the amount due to the complainant on his $313 mortgage ; and the defendants were to be at liberty to pay to the complainant the amount reported due, and upon such payment the complainant was decreed to release to the defendants all claim upon both of his mortgages. The decree further directed, that if the defendants should omit to pay to the complainant the amount reported due on the $313 mortgage, upon payment by the- complainant of the balance, if any, reported to be due to Van Horne on. the Watson mortgage, the mortgaged premises should be sold by a master; that out of the proceeds of the sale, the master should pay the amount due on the $313 mortgage, and bring the surplus monies into court; and that neither party should recover costs as against the other. The complainant thereupon appealed to the chancellor, from the whole of such decree, except so much thereof as allowed the validity of the $313 mortgage and decreed a foreclosure thereof.

      &. Wood, for the complainant.
    The sale was by collusion and with intent to defeat the rights of the complainant. There was no usury in the $690 mortgage. It is not usurious to lake up a chose in action at a discount. The defendant Ditmas has not answered, or set up the usury. He profited $500 by the discount allowed on the purchase of the Brundage mortgage by the complainant. Where an instrument is susceptible of two constructions, the one honest and the other usurious, the court will give it the construction which relieves it from the taint of usury. (Archibald v. Thomas, 3 Cowen, 284.) If there was usury in the case, the answer setting it up is defective. There must be a loan of chattels or monies to constitute usury. The answer speaks of a previous indebtedness, not of a present loan. Where there is a previous indebtedness, the course is only to deduct the usurious premium, not to vitiate the transaction. Here the proof is of one usurious transaction, and the pleadings set up another. In an action of debt upon a bond, if the bond is infected with usury, the defendant must plead the usury specially. (Bull. N. P. 224. Co. Litt. 48, a.)
    The owner of a farm subject to a usurious mortgage, cannot authorize his vendee to litigate the question of usury in the mortgage. The benefit of the objection of usury can only be taken by a party to the transaction. (Cro. Eliz. 445.) Wherever there exist defects which go to defeat a transaction, but which may be waived, the parties thereto alone can take advantage of the objection. (8 John. R. 361. 13 Id. 378. 1 Gall. R. 419.) So where a new note is given to a third person, including usury of an old note, the objection cannot be set up against him. (Brice v. Barstow, 9 Mass. R. 45. Green v. Kemp, 13 Id. 515. French v. Shotwell, 5 John. Ch. R. 555. 1 Leon. 307. 2 Ball & Beat. 98.) The purchaser of an equity of redemption which is subject to a mortgage, is bound in conscience to pay off the mortgage. This is a fundamental principle of equity. The judgment of Van Horne was not a lien, and gave him no right to set up the defence of usury.

      S. Ji. Foot, for the defendants.
    Van Home being liable to the defendant Smith on his covenants of warranty, it is competent for him to set up the defence of usury. Ditmas made the loan himself from the complainant. The purchase of the Brundage mortgage was made by Ditmas only. The loan by the complainant to Ditmas is therefore tainted with usury. Smith throws himself upon the covenants in his deed. An usurious mortgage is void as to the mortgagor, and all those who acquire his estate. (Green v. Kemp, 13 Mass. R. 515. 7 Bacon’s Abr. tit. Usury, E. P. 202. 1 Leon. 307, 427. 4 Peters’ R. 229. 10 Wheaton, 158. 5 John. Ch. Rep. 122.) Where the suit is on the usurious mortgage itself, and there is no new contract, the objection of usury can always be taken. The rule is the same in equity and at law. If Van Home is o, necessary party, he can clearly set up the defence of usury.
   The Chancellor.

If the decree of the vice chancellor an this case was right in other respects, it was clearly wrong in requiring the complainant, upon redeeming under the valid mortgage, to pay to the adverse party the costs of the statute foreclosure. In the case of Benedict v. Gilman, (4 Paiges R. 58,) this court decided that the purchaser, under the statute foreclosure, was only entitled to the amount due on the mortgage under which he purchased; and that the subsequent encumbrancer, coming to redeem, was not bound to pay the -costs of a proceeding which as to his rights was wholly inoperative. The effect of a statute foreclosure is to transfer to the purchaser the rights of the mortgagee, so far as he has any claim or interest in the mortgaged premises for the security of his debt, and also to transfer to him so much of the equity of redemption as was not bound by the lien of a junior mortgage or judgment. The title which Bacon acquired in this case, under the sale to him, was therefore precisely the same as if he had taken an assignment of Watsonss mortgage, and a deed from Bitmas and wife of all their interest in the premises ¡ subject of course to the right of any intermediate encumbrancer by mortgage or judgment, to redeem the premises by the payment of the amount due on the Watson mortgage at the time of the sale, with the interest thereon, if the legal claims of such subsequent encumbrancers were not paid.

The purchase of the premises from Bacon, by the defendant Van Home, and his subsequent conveyance to Smith, with covenants of warranty, operated as a release or extinguishment of Van Home’s right to redeem by virtue of his judgment against Bitmas; so that Smith had the whole legal and equitable title and interest in the premises, subject only to the complainant’s right to redeem if his intermediate liens were not paid. From the view therefore which I have taken of other points in this case, in connection with this fact, it is not necessary that I should express any definitive opinion upon the question whether the testimony showed the $590 mortgage to be usurious. I am inclined to think, however, if the testimony of Kline is to be relied upon as showing the real nature of the transaction, that it was not a case of usury. It appears that Brundage held a mortgage upon the premises for rising of $1200, which was not yet due, and that being in great want of money, he was willing to part with his mortgage for about one half of the amount which was to become due thereon. The substance of the agreement between Vroom and Ditmas was, that the former should furnish the means to buy in that mortgage, and take an assignment thereof to himself; and that he should let Ditmas have the benefit of the discount made by Brundage, except one hundred dollars, provided Ditmas would give a new bond and mortgage on the premises, for the amount actually paid by Vroom on the purchase, and the one hundred dollars of the discount which Vroom was to retain for his own benefit. Even from the testimony of Ditmas himself, I do not understand that Brundage made this large discount as a personal favor to him. But that he made it for his own convenience, because he was pressed for money which he could not otherwise obtain. Vroom unquestionably could have purchased the mortgage for the same discount, and might have retained thewhole nominal amount due thereon, for his own benefit, if he had not been willing to give his brother-in-law the principal benefit of the discount. If Vroom, therefore, had retained the original bond and mortgage, which he bought from. Brundage under this agreement, and which was assigned to him for the full amount due thereon, there can be very little room to doubt that he might have retained those securities as a valid claim upon the land, to the extent of the $690 and the interest thereon. Indeed, I know of no principle either of law or of equity, which could have prevented him from enforcing the assigned mortgage against the land, to that extent. And if he had the right to do that, it would be very difficult to maintain that the subsequent discharge of the assigned securities, and the taking of a new bond and mortgage for the same sum, would be usurious; although such change of securities took place in conformity with the arrangement made between the parties at the time of the sale or transfer of the mortgage from Brundage,

Where the usurious security, on which a suit or proceeding is instituted, is a bond and mortgage, or other specialty, the defence of usury cannot be given in evidence under the general issue, or a general answer denying the complainant’s right as claimed by the bill. But the defence of usury must be distinctly set up in the plea or answer of the defendant; and the terms of the usurious contract and the quantum of the usurious interest or premium must be specified, and distinctly and correctly set out. (Comyn on Usury, 203.) The defendant must also prove the usury as laid; and if he fails in proving the usurious contract in the way and manner in which he has charged it in his plea or answer, he must fail. (Tate v. Willings, 3 Durn. & East’s Rep. 538.) The contract for usury in the present case, as charged in the answer of the defendant Van Horne, is materially different from the contract proved by Kline and Bitmas, even if the contract as testified to by them is to be deemed usurious. A more substantial objection, however, to such a defence in the present case is, that Smith, the owner of the land upon which the complainant claims an equity of redemption by virtue of his mortgage, has not set up the defence of usury, or even alluded to it in his answer. He cannot therefore object to the complainant’s mortgage on that ground, or be benefitted by the defence set up in the answer of a defendant who had no interest or subsisting lien upon the mortgaged premises, and against whom the complainant had no legal or equitable claim. Although Van Home had conveyed to Smith with warranty, that did not authorize the latter to insist upon a defence, under the answer of a co-defendant, which he had not thought proper to suggest or to put in issue by bis own answer. I presume Van Horne was made a party, upon the supposition that his judgment against Ditmas was a subsisting lien upon the equity of redemption, and that if the complainant redeemed from Smith, Van Horne would have the right to redeem from the complainant. But, as 1 have before said, the conveyance to Smith, with warranty, was a release or extinguishment of the lien upon the equity of redemption which was conveyed, so far as that judgment was concerned. And it was not necessary to keep the lien of the judgment in force for the prolection of the rights of Smith, as he could at any time obtain a perfect title to the land by paying off the prior liens of the complainant. If the defence of usury against the $690 mortgage actually existed, and Smith was apprised of the fact before he put in his answer, he may have lost his remedy against Van Home upon the covenants of warranty, by his neglect to set up such a defence. That is a question, however, between the defendants, with which the complainant has nothing to do; and the necessary facts are not before me to enable the court now to settle the rights of the defendants as between themselves. That part of the decree of the vice chancellor which adjudges the mortgage for $690 to be usurious and void and that the mortgaged premises are exempt and released from the same, is therefore erroneous and must be reversed. The decree was also erroneous in directing the account to be taken between the complainant and Van Horne as to what was due upon the Watson mortgage. Under the statute foreclosure, and the several conveyances which have been made under the same, whatever was due upon that mortgage passed to Smith ; and it now belongs to his heirs and devisees as the owners of his real estate. For every purpose, except as to the right of the complainant to redeem if his ¿ mortgages are not paid, the original debt to Watson was merged in the real estate, by the statute foreclosure ; and passed as real estate to the subsequent grantees, and was transmitted to the heirs or devisees of Smith upon his death. And if the complainant redeems, they alone are entitled to any portion of the redemption money. The complainant has a right to offset, against the amount due on the Watson mortgage, the rents and profit of the premises since the conveyance thereof to Smith, after deducting from those rents and profits the present value of any permanent improvements made upon the lands by Smith, or those claiming under him, before they had notice of the complainant’s intention to redeem the premises under his mortgages. And if the amount due on the Watson mortgage has been .fully paid, and the value of the mortgaged premises is not sufficient to pay the amount due on the complainant’s mortgages, including the interest thereon, the estate of Smith, in the hands of his personal representatives, is liable for the surplus of the rents and profits received by Smith in his lifetime, after his refusal to permit the complainant to redeem. His devisees or heirs, who have received the rents and profits since his death, are also liable, to the extent of the rents and profits received by them.

As a general rule, a party coming into this court to redeem pays costs to the defendant, although he succeeds in obtaining the relief asked for, unless the defendant has improperly resisted his claim; in which latter case the defendant will not only be refused his costs, but may be compelled to pay costs to the complainant, in the discretion of the court. In this case, it is pretty evident that the defendant Van Horne intended to take advantage of the sale under the statute foreclosure, supposing that he could thereby overreach and defeat the lien of both of the complainant’s mortgages. And if he had not parted with all his interest in the land at the time of the formal application to redeem, I should probably have considered his refusal to do justice to the complainant a sufficient reason for charging him with the costs, to which the complainant has been unnecessarily and improperly subjected. But as he had parted with all his interest in the premises before the commencement of the present suit, I can do no more than to leave him, where he is placed by the decree of the vice 'chancellor, to pay his own costs in the suit. As he has not appealed from the decree, I cannot award costs to him, against the complainant, or order the bill to be dismissed as to him, although he does not appear to have been a necessary party to the bill to redeem. The defendant Smith was in a different situation from Van Horne, as he had purchased the premises at their full value, or nearly so, supposing that he was obtaining a perfect title thereto under the conveyance from Van Horne ; and he could not permit the complainant to redeem, except under a decree of the court, without impairing his rights against his grantor upon the covenants of warranty. The vice chancellor was therefore right in not charging his representatives with costs.

The decree of the vice chancellor must be modified so as to declare that the two mortgages of the complainant are a lien upon the equity of redemption, notwithstanding the statute foreclosure, and that he is entitled to redeem unless the present owners of the premises shall elect to pay off and satisfy the amount due on those mortgages. It must be referred to a master residing in the county of Seneca, to take an account of what is due to the complainant for principal and interest on his two mortgages, and also to ascertain whether any thing is due upon the Watson mortgage, over and above the rents and profits of the premises since the conveyance thereof to Smith, in February, 1822 ; and if the Watson mortgage and interest have been fully paid by such rents and profits, the master, if requested by the complainant, is also to take an account against the executors of Smith of the surplus rents and profits, if any, received by their testator in his lifetime, after the application to him by the complainant to redeem ; and also an account against such of the defendants as became entitled to the premises upon the death of Smith, as his heirs or devisees, for the rents and profits after that time. And the master is to deduct from the rents and profits the present value of any permanent and beneficial improvements made upon the premises by Smith, or those claiming under him, previous to the application of the complainant to redeem, and also the expenses of ordinary repairs. The master is also to allow interest as shall be equitable, in taking such account. If he is requested by the complainant to take an account against the executors and the heirs or devisees of Smith, as above directed, he is to make a separate report of the amount due to the complainant on his mortgages, and the amount, if any, which remains due upon the Watson mortgage over and above the rents and profits of the premises. And upon the coming in and confirmation of the said separate report, or of the general report, in case no such separate report is made, if the owners of the premises do not, within twenty days thereafter, give to the solicitor of the complainant a written stipulation to pay off the amount due to the complainant on his two mortgages, with the interest thereon, and actually pay the same within sixty days thereafter, then the complainant, upon paying the amount, if any, which is reported due on the Watson mortgage, may have a sale of the premises by a master, upon the usual notice, and with the usual directions for the delivery of the possession upon the production of the master’s deed. And out of the proceeds of such sale, the master is to refund to the complainant the amount, if any, which has been paid by him for the redemption of the Watson mortgage, and the amount due upon his two mortgages, with the interest thereon, and to bring the surplus, if any, into court; or if there is a deficiency, he is to report the same to the court. All further questions and directions are to be, reserved until the coming in and confirmation of the said several reports; together with all questions of costs not before disposed of, including the costs of this appeal and of all subsequent proceedings in this suit. The decree also is to be without prejudice to the rights of the heirs or devisees or other representatives of Smith, as against Van Home, under the covenants of warranty, if any such rights exist*


text:
    Lloyd vs. Brewster and others.
    Where goods are obtained from the vendor by means of a fraudulent misrepresentation of the vendee as to his situation and circumstances, the vendor may elect to consider the sale void, and may follow the goods, or the proceeds thereof, into the hands of a third person who has received them without paying any new consideration therefor; or he may affirm the sale, and proceed in the ordinary way against his vendee to recover the price of the goods.
    If a vendor, who has been defrauded in the sale of his goods, proceeds to judgment against the vendee, upon the contract of sale, after he is apprised ■of the fraud, his election is determined ; and he cannot afterwards follow the goods, or the proceeds thereof, into the hands of a third person, on the ground of the fraud.
    Where the vendor recovers a judgment for the price of the goods, before he has notice of the fraud, he cannot file a creditor’s bill against the vendee for the purpose of collecting the amount of the judgment out of the equitable assets and choses in action of the defendant, and in the same bill claim to follow the goods, or the proceeds thereof, into the hands of a third person, on the ground that the original sale was fraudulent and Void. Neither is a bill with a double aspect proper for such a case.

      A bill with a double aspect may be filed where the complainant is in doubt whether he is legally entitled to one kind of relief or another, upon the facts of the case as stated in the bill; in which case Ins prayer should be framed in the alternative, so that if the court decides against him as to one kind of relief prayed for, be may still obtain the proper relief under the other branch of his alternative prayer.
    So also, where the complainant is entitled to relief of some kind against the defendants, upon the facts stated in his hill, if the nature or kind of relief to which he is entitled depends upon the existence of a fact of which he is ignorant, he may allege his ignorance of such fact, and may frame his prayer for relief in the alternative, so as'to obtain the appropriate relief according as the fact shall appear at the hearing of the cause.
    Where a bill has been filed for a particular purpose, and has been sworn to for the purpose of obtaining an injunction, which injunction has been dissolved upon the coming in of an answer denying the whole equity of the bill, the court will not allow an amendment the effect of which will be to change the whole character of the litigation.
    August 19.
    This was an appeal from a decision of the vice chancellor of the first circuit, refusing leave to the complainant to amend a sworn bill. The bill stated the recovery of a judgment in favor of the compláinant, against the defendant Brewster, for about $700, on a bond and warrant given for goods sold to him by the complainant, upon which judgment an execution had been issued, and returned unsatisfied. The bill contained the usual allegations required to be stated in creditors’ bills, by the -189th rule. The complainant also charged that the goods for which the bond and warrant were given, were obtained from him upon false and fraudulent representations, made by Brewster, and by Ramsdell and Brown the other defendants, that Brewster had a capital of $2000, and was safe to trust; and that about the time of the making these false and fraudulent representations, Brewster gave to Ramsdell and Brawn a bond and warrant of attorney to enter up judgment, for a large amount, to secure some pretended claim of Ramsdell and Brown, or for credits or advances to be given or afforded to Brewster by them. The complainant further charged that it was fraudulently agreed, between Brewster and Ramsdell and Brown, that they should aid and assist Brewster in setting up business and in obtaining credit, and particularly in obtaining goods on credit, and that Brewster should in any event secure them from loss; and that if he was unsuccessful in business, he should secure any claims they might have against him, in preference to all other creditors. And that the bond and warrant of attorney to Ramsdell and Brown were given, and the false and fraudulent representations upon which the goods of the complainant were obtained were made, in pursuance of and in accordance with such agreement to give them a preference. The complainant fur-'¿her alleged, in his bill, that subsequent to the delivery of his goods to Brewster, the latter made an assignment of his goods, household furniture and effects to Ramsdell and Brown, for the purpose of defrauding the complainant and other creditors; 4he principal part of which goods and effects, so assigned, were the same goods obtained from the complainant upon such fraudulent and false representations, or the proceeds of such goods. The complainant therefore prayed that the bond and warrant, giveii to Ramsdell and Brown, and the judgment entered thereon, and the assignment from Brewster to them, might be adjudged fraudulent and void j that the assigned property and effects might be delivered up; that an account thereof might be taken ; and that the debt of the complainant, and the debts of such other creditors as might come in under the decree, might be paid out of such property and effects, according to their respective priorities. The bill also contained a prayer for an injunction, for a receiver to take charge of the assigned property, and for general relief. Upon the coming in of the answer of Ramsdell and Brown, denying all fraud on their part in obtaining the goods and all knowledge of any fraudulent misrepresentations on the part of Brewster, and denying all fraud in the assignment, which assignment, as they alleged, was made to one of them to secure the payment of a bona fide debt due to both, the injunction was dissolved. And upon an appeal to the chancellor, the decision of the vice chancellor dissolving the injunction was affirmed. On the hearing of that appeal, as it appeared from the answer of Brewster that he had obtained the goods upon the false and fraudulent representation that he had a cash capital of $2000, when in fact he had no such capital, the complainant’s counsel insisted that he had a right to follow the goods, or the proceeds thereof, into the hands of Brewster’s assignee, although they might have been fairly and honestly assigned to secure a bona fide debt; and that the injunction, for that reason, ought not to have been dissolved. But the court held that the bill was not properly framed for that kind of relief; that the complainant, by taking a judgment for the amount of the goods sold, and by filing a creditor’s bill here to collect the amount of such judgment, had affirmed the sale of the goods, and could not, therefore, treat the sale as a nullity. And that if the judgment had been taken, and the execution issued thereon, before the complainant was apprised of the fraud, he should have stated the fact in his bill. The complainant thereupon applied to the vice chancellor for leave to amend the bill, by charging that fact; and by changing and into or, at the conclusion of the prayer for special relief, so as to make the prayer in the alternative, for the specific relief asked for, provided that could be obtained, and if not, for such other relief as might be proper upon the case made by the bill. The vice chancellor denied the application ; whereupon the complainant brought the present appeal.

      T. R. Lee, for the complainant.

      M. Hill, jun, for the defendants.
   The Chancellor.

The vice chancellor was right in supposing this was not a case for a bill with a double aspect. That the different parts of the bill would be inconsistent with each other, if the complainant was permitted, therein, to treat the sale to Brewster as valid, by proceeding against him as a judgment creditor under the judgment recovered for the price of the goods upon the sale, and was at the same time permitted to repudiate such sale on account of the fraud practised upon the complainant in obtaining the goods, and to seek a recovery of the specific articles, or the proceeds thereof, in the hands of another of the defendants, to whom they had been assigned for the payment of antecedent debts. A proper case for a bill with a double aspect, is where the complainant is in doubt whether he is entitled to one kind of relief or another, upon the facts of his case, as stated in the bill. In such a case he may frame bis prayer in the alternative; so that if the court is against him as to one kind of relief prayed for, he may still be enabled to obtain any other relief to which he is entitled, under the other part of the alternative prayer. So also where a complainant is entitled to relief of some kind, upon the general facts stated in his bill, if the nature of the relief to which he is entitled depends upon the existence or non-existence of a particular fact, or circumstance, which is not within his knowledge, but which is known to the defendant, he may allege his ignorance as to such fact, and call for a discovery thereof. "And in such a case he may also frame his prayer in the alternative, so as to obtain the proper relief, according as the fact may appear at the hearing of the cause. Here the complainant alleges that the goods were obtained from him by the fraudulent representations of the purchaser and the other defendants. And he states a case of fraud in his bill, which, if true, would subject the purchaser to imprisonment in the state prison, for obtaining goods by false pretences. He had therefore a perfect right to elect to consider the sale as void, and to follow his goods, or the proceeds thereof, into the hands of the assignee who had paid no new consideration therefor on the assignment. Or he might elect .to affirm the sale, or to consider it as valid; and to proceed as a judgment creditor against all the property, equitable interests, and dioses in action of his debtor, either in his own hands or in the hands of a fraudulent assignee. And he might look to Rams-dell and Brown personally for the balance which remained uncollected, if he could establish the fact of their participation in the original fraud in obtaining the goods. I think it is pretty evident that the original bill in the present case was not framed with a view to the first kind of relief. The complainant hoped to reach all the assigned property, under a creditors bill founded upon his judgment, upon the allegations of fraud in the assignment, which were stated in his bill as it was subsequently amended. But the assignee having denied all fraud in the assignment, the complainant now wishes to abandon his judgment recovered for the price or the goods, or rather to place himself in a situation to repudiate the sale in part, so as to follow such part of his goods, or the proceeds thereof, into the hands of the assignee, on the grounds of a prior equity. This would be changing the whole character of the litigation : which I think should not be permitted upon a sworn bill, and in this stage of the suit.

The decision of the vice chancellor is therefore affirmed, with costs.