author: The Chancellor.

text:
    Benjamin Hoyt, Administrator, &c., of Elizabeth Hait, deceased, v. Herman Thorn.

      Vi. J., of the city of New York, died there, leaving- a will, by which, after certain specific legacies and devises, he gave the residue of his property to W. J. T., when he should arrive at the age of twenty-one. The will was proved in New York, and the estate administered there. W. J. T. died before attaining twenty-one, and without issue. The bill claimed, that by the death of W. J. T. the devise and bequest of the said residue to him lapsed, and that the said residue was distributable among the next of kin of the testator.
    E. II., who lived and died in New Jersey, was one of the next of kin. II. T., a citizen of Now York, visited E.H., in her lifetime, at her residence in New Jersey, and obtained from her an assignment and release to him of all her interest in the said residue. The bill alleged that this assignment was obtained by fraud, and prayed that it might bo declared void, and that II. T. might be decreed to account and to pay, ite. On the filing of the bill by the personal representative of the said E. H., a subpena was issued against H. T., and was returned “ not found,” with the usual affidavit of non-residence, and that II. T. resided in New York; and an order of publication was made in the usual form, and was duly published, and a copy thereof was served on II. T., in N ew York.

      Held, that the Court did not thereby acquire jurisdiction of the ease.

      Benjamin Hoyt, of the township of Union, in the county of Essex, in this State, administrator pendente lite of the goods, chattels and credits of Elizabeth Hait, late of the same place, deceased, exhibited his bill, stating that William Jauncey, deceased, late of the city and State of New York, died, in the city of New York, on or about September 19th, 1828, leaving a will, by which he bequeathed all his estate, real and personal, both in New York and in Great Britain, to Sir Edmund Antrobus, of London, John White, captain in the British navy, Thomas Barclay, of New York, and John Rutherford, of New Jersey, in trust, &c., and after devising and bequeathing portions of his real and personal estate, gave and bequeathed all the residue bad remainder of his property to William Jauncey Thorn, when he should arrive at the age of twenty-one years, to him and his heirs forever; and appointed the said Antrobus, White, Barclay and Rutherford executors of his will; that Antrobus and White declined acting as executors ; and that Barclay and Rutherford proved the will in New York, and received letters testamentary as executors thereof; that Barclay died in April, 1830, leaving Rutherford sole surviving executor ; that the said William Jauncey Thorn died November 18th, 1830, before attaining twenty-one, and without issue. The bill claims, that by his death before twenty-one, the devise and bequest to him of said residue and remainder lapsed, and that the said residue then belonged to and was distributable among the next of kin of the testator; that the said William Jauncey Thorn Avas the son of Jane Mary Thorn, named in the will, by her husband, Herman Thorn, noAV of the city and State of NeAV York; that the said Elizabeth Hait, deceased, was, Avith others named in the bill, the next of kin of the testator ; that in February, 1831, after the death of the said William Jauncey Thorn, Jamos A. Hamilton, of the city of New York, counselor at law, obtained, from the Surrogate of the county of New York, letters of administration of the goods, chattels and credits of the said William J. Thorn; that Hamilton, as administrator as aforesaid, claimed that the said legacy to William J. Thorn did not lapse by his death, and claimed the right to receive the same from the said Rutherford, executor as aforesaid, and claimed that Herman Thorn Ayas entitled to receive the same from him, Hamilton, as administrator as aforesaid ; that Herman Thorn, as the father of William J. Thorn, claimed to have and receive from the said executor, Rutherford, the portion of the estate of the testator, William Jauncey, that William J. Thorn would have been entitled to if he had attained twenty-one ; that some of the said next of kin of the testator, in July, 1831, Mod their hill in the Court of Chandlery of the State of New York, against the said Herman Thorn, j. A. Hamilton, John Rutherford, and the said Elizabeth Hait, for an account of the said residue and remainder, and the payment to them of portions thereof, as next of kin as aforesaid that before any proofs were taken in that cause, a compromise was made between the complainants therein and the said Herman Thorn, one of the defendants therein, whereby the said Herman agreed to pay to the said complainants $210,000, and in consideration thereof the said complainants released and assigned to Mm all their interest in the said residue and remainder; that Elizabeth Hait died in Essex county, in this State, March 9th, 1845, leaving an instrument purporting to be her will, and appointing executors thereof, who renounced the executorship; that a. caveat was filed against the probate of said instrument as a will; and that, on the 7th June, 184G, administration pendente lite was granted to the complainant; that in June, 1833, Elizabeth Hait executed an instrument purporting to he an assignment and release to Herman Thorn of all her interest as one of the next of kin of the said testator, in the personal estate of the said testator ; and the hill states that the said instrument was fraudulently obtained, and is void in equity. The bill states the facts and circumstances preceding and attending the execution of the said instrument, and on which it is claimed that the same is void, and states that it was executed by the said Elizabeth at her residence in the county of Essex, in this State; that the said suit in New York was pending at the time of the execution of the said alleged assignment and release; and that the said Elizabeth, as a defendant therein, had appeared to the said suit, by Walter Edwards, her solicitor ; and that, at the time of tho execution of the said assignment and release, and as a part of the same fraudulent transaction, an instrument of writing was, by the same and similar means, procured from the said Elizabeth, authorizing the said Herman Thorn to substitute any person he might designate as solicitor for the said Elizabeth in the said suit in New York, in the place of the said Walter Edwards ; that Herman Thorn caused George W. Strong, who was the pai*tner of, or in some way connected in business with, the solicitor of the said Herman, to be substituted as solicitor of the said Elizabeth in the said suit; that the said Herman Thorn, having thus obtained control of the said share of the said Elizabeth, and having previously obtained from the complainants in that suit their consent to assign and release their shares to him, an order was made in the said suit, on motion of the counsel of the said Herman Thorn, the counsel for the complainants therein consenting thereto, and the said Strong, as solicitor for the said Elizabeth, also consenting thereto ; by which order it was, among other things, ordered, adjudged and decreed that the said John Rutherford should pay, out of the personal estate of the said testator, $210,000, thc.same being, as is stated in the said order, the consideration money of a deed of assignment and release to tliesaid Herman Thorn, of the share of the complainants in that suit in the said residue and remainder of the personal estate of the said William Jauneey; which said deed of assignment and release was then placed as an escrow in the hands of Peter A. Jay — the said $210,000 to be paid to the said Jay for the use of the persons who had executed the said assignment and release; and that it be referred to a Master, to take and state an account of the estate in the hands of Rutherford, and that the said Rutherford pay the balance in his hands to the said James A. Hamilton, administrator, &c., of the said William J. Thorn, deceased ; that, in pursuance of said order, an account was taken, &c., and that Rutherford, after deducting, &c., delivered over the residue and remainder of the said personal estate, amounting to upwards of $400,000, to the said James A. Hamilton, and delivered over to kim all the share of the said Elizabeth Hait of the said residue to which she was entitled; and that, shortly afterwards, ho (Hamilton) delivered over the same to the said Herman Thorn; and that said Herman still holds the said Elizabeth’s share of the said residue.

      The bill prays, that the said alleged assignment and release may be ordered to be delivered up to be cancelled, and that Herman Thorn may be ordered to account with the complainant, and to pay over to him such part of the residue and remainder of the-personal estate of the said William Jauncey, deceased, as has at any time come to the hands of the said Herman Thorn, and to which the said Elizabeth was entitled in her lifetime.
    Herman Thorn lived in the city of New York when the said assignment and release was procured, and still lives there.
    On the filing of the bill a subpena was issued, and on its being returned “ not found,” with the usual affidavit of non-residence, and that Thorn resided in New York, an order of publication was made in the usual form; and a copy of this order, or some other notice of the filing of the bill, was served on Thorn, in the State of Now York. The matter being stirred before the Court, it was agreed by the counsel for the complainant and the counsel for Thorn, that the question, whether the said proceedings could give this court jurisdiction in the case, should bo argued on a motion to vacate the order of publication.

      W. Pennington and P. D. Vroom for the motion.
    They cited 8 John. Rep. 86, 194; 5 Ib. 37; 5 Mason’s Rep. 35, 42; 1 Dallas 261; 1 Smith’s Ch. Pr. 152, 3; 4 Wash. C. C. Rep. 203; Elm. Dig. 60; 6 Cranch 148, 160; 2 Paige 404; Story’s Conflict of Laws 546; Hopk. Ch. 213.

      W. Halsted and George Wood, contra.
    They cited 6 Harr. & John. 201; 1 Hill 130, 139; 15 John. Rep. 121; 19 Ib. 39; 21 Wend. 40; Elm. Dig. 434, 443; 3 Harrington’s Rep. 525; 4 Con. Rep. 380; 1 Pet. Rep. 73, 82, 3; 2 Chitty’s Gen. Pr. 304, 5; Ld. Kaime’s Law Tracts 215; 1 Ves. 447, 454; 4 Cow. 717; Marvin’s Law of Nations 80, 102; 6 Cranch. 159; Gilb. For. Rom. 21; Elm. Dig. 139; 4 John. Ch. 106; Story’s Conf. of Laws, sec. 549; 9 East. 192, 4; 6 Ib. 582; 7 Ib. 68; 4 Ib. 164; 7 Sergt. & Rawle. 579; 2 Bos. & Pul. 381; 8 Amer.Jur. 69; 21 Wend. 509; 3 Con. Rep. 1; 1 Hill 482; 6 Mass. 358; Duponceau 23, 26, 27; Story’s Confl., sec. 516, 519, 550, 540, 542, 536, 585; Vatlel, Book 2, ch. 7, sec. 54, 5; 14 John.

      Rep. 134; 16 Ib. 327; Elm. Dig. 566; 5 John. Rep 41; Holt’s Rep. 12; 2 Campb. Rep. 63; 1 Gallison 585; 2 Story’s Eq. Jur., sec. 743, 4.
   The Chancellor.

I have not been able to take any view of this question Avhich will authorize this court to proceed in this cause. Our statute directing publication in the case of an absent defendant can only apply to cases in which the court has jurisdiction of the subject matter of the suit. If it be not thus limited, there is no limit, either as to the persons of defendants or as to subject matter. Herman Thorn, a citizen of New York, by means of an assignment by Elizabeth Hait to him, received in New York the share to which she was entitled of the personal estate of William Jauncey, deceased, ayIio lived and diedinNeAV York, whose will Avas proved there, and whose estate was administered there. If he has received it wrongfully, or in such manner and by such means that he will be held to have received it for her use, and to be accountable to her for it, her claim is against him personally. Equitas agit in personam : the primary decree in all suits in equity is in personam. The end and object of any suit instituted by her against him Avould be the recovery of the money from him. The assignment by means of which Thorn received the money Avas executed in this State; and it is contended that, inasmuch as the prayer of the bill is, that the assignment may be set aside, as well as that Thorn may account and pay the money ; and as the charge in the bill is, that the assignment Avas procured by fraud, the subject matter of the suit is here. It is admitted that it was necessary to go, in this bill, for an account and payment of the money, as well as for the setting aside of the assignment; that the suit must be wholly here, or Avholly in New York. But it is contended that the fraudulent procurement of the assignment is the subject matter of tlio suit, the gravamen, and Avill draAV the matter of account and payment to it as incidents. I cannot see the matter in this light. If Elizabeth Hait had been on a Arisit to Connecticut, and the assignment had been procured from her there, would a Connecticut court haAre jurisdiction without the service of process 1 Thorn has receiAred the money. Of what utility could it be for this court to declare the assignment void 1 Ho is in New York, with the money in his pocket. The complainant would be obliged to prosecute him there for the money. If he had not received it, would a suit here to set aside the assignment prevent his receiving it 1 The case amounts only to this : Thorn has received the money by means of tho assignment; if the assignment was fraudulently procured, he has received the money wrongfully, and will bo held to have received it for her use; and her claim against him is in personam. It cannot be that tho place where the assignment was executed can give locality to the claim for tho money. Does Thorn’s coming into this State and procuring the assignment, make the case in any way different from what it would have been if he had by letters induced her to send it to him in New York 1 He having received the money, the cause of action or object of suit is the recovery of it from him. The cause of action or subject matter of tho suit cannot be the mere negation of the validity of the authority by which he received it. Where would he the jurisdiction on assumpsit at law 1 It is said that fraud in the procuring the assignment gives jurisdiction to this court, because the fraud was practiced here ; tho fraud not being in the mere execution of the instrument. But what was this assignment other than a personal contract by which Thorn was authorized to receive her money, transitory in its character; a contract authorizing a citizen of Now York to receive^ in New York, money that she was entitled to there. It seems to mo it would he going very far to say that such a contract is a reslocata in such a sense that to act upon it would bo proceeding in rem. Where would the principle contended for in opposition to the motion stop 1 A citizen of New York, indebted to' mo, a resident of this State, comes here, and by fraud gets my receipt for tho debt. Could a suit bo instituted against him in this court, without service of process on him, for the money 1 Certainly not. Would the putting in the bill a prayer to set aside the receipt remove the difficulty 1 I think not. The fact that a notice of the suit has been served on Thom in New York cannot aid the complainants. If that was sufficient, any citizen in New York, having a claim in personam against another citizen of New York, could give this court juris, diction of it.

The order of publication will be vacated.

Order accordingly.


source: Caselaw Access Project

author: The Chancellor Tiie Chancellor.

license: Public Domain

text:
    Joseph B. Howell and others, v. Charles Robb.
    If the hill state, either directly or by inference, a base line of a fishery, an answer denying that such is the base line, and stating another, and shewing by what authority that was fixed, is responsive.
    W. II. was seized of land bordering on the Delaware river, and held and enjoyed a fishery in the said river opposite his said lands as appurtenant thereto. After his death, intestate, the Orphans’ Court of the county in which the lands are situated appointed Commissioners to make partition of his real estate among his heirs at law. The Commissioners, in making partition, separated the lands lying contiguous to the river from the fishery, by lines and fixed monuments, and severed and set off the fishery as a separate share of the estate, the line of separation being the usual high water mark. An injunction, which had been granted restraining the owner of the land from building a wall on the said line, was dissolved.
    Motion to dissolve injunction, which-had been granted on the hill by one of the injunction Masters.

      T. W. Midford and W. L. Dayton in support of the motion.

      Mr. Jeffery contra.
    On filing the answer, notice was given of a motion to dissolve the injunction. Afterwards, affidavits were taken on the part of the complainants, which Mr. J offers offered to read in support of the injunction.
    Mr. Dayton opposed the reading of them; and cited Eden. on Inj. 117; 1 John. Ch. 445; 2 Ib. 204.
   The Chancellor

said they could not he read.

The facts in this case will sufficiently appear in the opinion delivered by the court.

Tiie Chancellor.

The bill states, that the complainants are seized of three-fifths of the Hugg fishery, and that the defendant is seized of two-fifths thereof; and that the parties in interest appointed Philip Gray, John R. Cowperthwaits and Isaac Reeves, referees, to sot off the share of the defendant by marks and measurements. That the referees made partition, setting off by metes and bounds two-fifths of the said fishery to the defendant and three-fifths thereof to the complainants ; the part allotted to the defendant beginning at what the surveyors of the parties ealled “ the upper stone,” above Sykes’s wharf, and running south, along the base line of said fishery, 229 feet, to the lower edge of said Sykes’s wharf, to a stake driven into a decayed log of said wharf; thence down the river, along said base line, 547 feet to a largo “ pebble stone” in or about the line of the usual high water mark ; and allotted to the complainants the remaining river front, or fishing right of said fishery, beginning at the south side of the said a pebble stone,” and running dowm the river along the base line of said fishery.

That the defendant has converted his part of the shore of the said fishery into town lots fronting on the river, and has erected a stone wall along the shore, below high water mark, in front of the fishery, and below the large “ pebble stone,” (i. e. down stream from the large “ pebble stone,”) in front of the fishery allotted to the complainants, and threatens to continue it.

That said wall, if continued, will destroy the complainants’ fishery; that the 'tide will wash up against said wall, and it will be impossible to make a high water haul in said fishery, which is the most important “haul.

The bill prayed an injunction against further erecting the wall, and it was granted.

The answer states, that the complainants hold their right in the said Hugg fishery under Wm. Hugg, the elder, and that the defendant holds his land or town lots under the same Wm. Hugg. That said Wm. Hugg died intestate, seized of the said land or town lots, and held, used and enjoyed the said fishery as appurtenant thereto. That after his death the Orphans’ Court of Gloucester appointed Michael C. Fisher, Wm. Sharp and Aaron Wood to make partition of his real estate among his heirs at law. That the said commissioners made such partition, and thereby caused the lands lying contiguous to the river to be separated from the said Hugg fishery, by lines, fixed monuments and permanent land marks, and did not bound said lands by the river, or any part thereof; which lines so fixed by the said commissioners now form the westerly boundary of the land or town lots of the defendant; within which the said stone wall has been erected. That the said commissioners, in making the said partition, severed the said fishery, and set off the same as a distinct and separate share of the estate of said Wm. Hugg ; that the westerly lines and boundaries of his land remain the same as when fixed by the said commissioners.

That Gray, Cowperthwaite and Reeves were not appointed for the purpose of fixing the easterly lino of said Hugg fishery, and did not fix the same in their partition ; but that they were appointed solely to set off two-fiftlis of the length of said fishery to the defendant, and three-fifths of the length to the complainants ; and that for that purpose, and no other, they caused the large pebble stone,” mentioned in the bill, to be placed at a certain point on the shore, in about the lino of the usual high water mark.

That he, the defendant, is seized of a large tract of land lying-adjacent to the shore of the Delaware river, and in front of the said Hugg fishery, of the value, as ho believes, of $100,000, and daily increasing in value by reason of the great improvements now being made upon and near the same. That the current of the river sets strongly against the shore where his said land binds on the river, and that a wall is necessary to prevent its being washed away. That within a few years the water has made such encroachments upon his land that large trees that were marked as monuments to show his boundary line, and also large trees standing and growing within the lino of and on his land, have been washed up and thrown down by the action of the current. That tlio wall, although erected along the shore, at about high water mark, is not, nor is any part of it, upon the said fishery ; but that the same and every part of it is on Ids land and within the lines hounding the same. He admits he has erected a stone wall of about 100 yards in length, and about 8 or 4 feet high, and that it was his intention to continue such wall along the whole river front of his land ; hut he says the wall is placed at about the usual or average high water mark; that though sometimes the tide rises up to and washes it, at other times the tide at high water does not reach it; and that ho is informed and believes that it will not prevent the complainants from, making their high water haul at any usual or ordinary high tide.

The hill goes upon the hase line of the fishery, without stating distinctly what that is. It might be inferred from the bill that the commissioners to divide the fishery between the defendant and the complainants fixed the base line of the fishery, and that the wall erected by the defendant is outside of that line ; or the bill may mean that high water mark is the base line of the fishery, and that the wall erected is below high water mark. No reference is made in the bill to the partition made by the commissioners appointed by the Orphans’ Court of Gloucester to divide the real estate of Wm. Hugg, the elder, deceased; which commissioners separated the fishery from the upland along the shore, by separate boundaries. The answer sets out that partition, and states that the wall erected is inside, i. e. on the land side of the line fixed by it, separating the fishery from the upland. And there is nothing in the bill inconsistent with this idea.

The commissioners appointed by the Orphans’ Court, and who divided the fishery from the upland, and allotted the fishery as a separate part of the estate of Wm. Hugg, the elder, were the proper persons to fix the line between the fishery and the upland; and the persons to whom the fishery fell', in that division, took it according to that line. Those commissioners, it would seem, fixed the line at about the usual high water mark; and from the statements of the bill and answer there is nothing to show that the- wall erected by the defendant is outside, i. e., on the river side of that line. The bill says it is below high water mark. What high water mark is meant 1 The usual high water mark, or the line to which the water sometimes rises %

The commissioners to divide the fishery from the upland, no doubt, fixed what they understood to be the ordinary high water mark, or a line which would give the fishery its proper rights. And the answer says the wall is within the line fixed by them.

It was objected on the argument, that that part of the answer which sets out the partition made by the commissioners to divide the real estate of Wm. Hugg, the elder, and which separated the upland from the fishery, was new matter, not responsive to the bill. It does not so appear to me. The bill stating, either directly or by inference, a base line of the fishery, it seems to me tliat the answer, denying that such is the base line, and stating another, and showing by what authority that was fixed, is clearly responsive.

On the facts stated in the answer, the injunction will bo dissolved.

Order accordingly.


text:
    David Halliday v. Peter A. Johnson and others.
    A decree in a mortgage case was appealed from; and pending the appeal, and within a year from the date of the decree, an agreément, under seal, was made between the parties, that a certain portion of the amount due on the decree should be paid on the execution of the agreement; that the interest on the balance should be paid half yearly, and that instalments of principal should be paid yearly; and that on failure in paying any instalment, the complainant 'should be at liberty to issue execution on his decree. Held, that on failure of payment of an instalment, an execution might issue after a year without scire facias.

    In June, 1842, Peter A. Johnson filed his hill for foreclosure, on a mortgage dated April 1, 1841, given by'Edwin Ford and wife to him, to secure the payment of $6,000, in four years from date, with interest half yearly, from Feh. 1, 1841, according to the condition of a bond, &c. On the Uth April, 1848, a Master reported that there was then due on the mortgage $910 53, and that there would become due on the 1st of April, 1845, $6,000, and the interest thereon from Feb. 1, 1843, being $7V8 .19; that a sufficient part, of the mortgaged premises to pay the amount due at the date of the report could not be sold, and that the whole of the mortgaged premises should be sold to pay the amount then due and the amount to become due. On the 28th July, 1843, a decree ivas made for the sale of the whole premises, to pay the amount then due and the amount to become due. Ford appealed from this decree; and, in consequence of the appeal, no execution ivas issued. On the 1st May, 1843, a half year’s interest became due. In Nov.- 1843, Johnson brought ejectment on his mortgage. On the 1st Feb. 1844,[another half "year’s interest became due.
    In this state of things, an agreement of three parts was made, by writing under seal, dated May 20, 1844, between Ford, of the first part, and George D. Strong, of the second part, and Johnson, of the third part, by which, after reciting the said mortgage, and the proceedings thereon, and the appeal, and the ejectment suit, and that Ford was about to sell the premises to Strong, Ford agrees with Johnson to withdraw his appeal, and to permit judgment to he entered in the ejectment. Strong agrees with Johnson to pay him, on the execution of the agreement, $6,000, and to pay him tjie further sum of $484 28, on or before May 31st, 1844, with interest from the date of the agreement, and all costs, and to pay Johnson the interest on the $6,000, half yearly, on the first days of Aug. and Feb. in each year, and $500 of the principal on the 1st of April, 1845, and $500 of the principal on the 1st of April in each succeeding year, until the 1st of April, 1848, when the balance of the said principal was to become payable from Strong to Johnson. That Strong should put the mill, machinery and premises in good repair, and keep them so until the mortgage should bo paid oil', and that all the machinery he should put upon the premises should be subject to the mortgage; that he would keep the mill and machinery insured for at least $5,000, and assign the policy to Johnson. That after Ford’s said appeal should be withdrawn, the decree in Chancery should remain and be of the same force as if the appeal had not been taken, and should stand to secure the performance of the covenants contained in the said agreement ; and that if Strong should fail to make tlic payments of interest or principal for thirty days after the same should become payable according to the said agreement, or fail in any other thing in said agreement contained to be performed by him,, then Johnson should have full right to issue execution on the said decree and sell the mortgaged premises according to law; and that in case of any breach of said agreement on the part of Strong the whole of the principal money should become payable on the 1st of April, 1845, according to the condition of the said mortgage. Johnson agreed to delay all proceedings on the decree until April 1st, 1848, except upon the breach of said agreement by Ford or Strong, and to extend the time of payment of the mortgage (except as before stated) for three years from the time when it becomes payable by the terms of it, i. e. to April i st, 1848 ; and that he would take no measures to enforce the decree, nor issue execution on the judgment in ejectment, unless it be by reason of the breach or non-performance of the said agreement.
    On the 22d May, 1844, Ford and his wife conveyed the property to Strong, subject to Johnson’s mortgage; and on the next day Strong and his wife executed a mortgage on the premises to Ford, to secure $3,800, part of the purchase money.
    On the 22d May, 1844, Strong paid every sum required by the said agreement to be paid, leaving only the $6,000 unpaid and interest thereon from Feb. 1st, 1844.
    Strong went into possession, and put the mill, machinery and premises in good repair; and the bill states that he put in the mill valuable machinery and otherwise improved the premises to the value of $7,000 or $8,000; and the interest was paid to Johnson up to Aug. 1,1846.
    On the 15th June, 1846, Strong and his wife, for $4,500, conveyed an undivided half of the premises to David Halliday, the complainant; and on the 31st Oct. 1846, for $5,000, conveyed the other half to the said complainant.
    On the 23d Aug. 1846, Johnson caused an execution to be issued on the decree, and delivered to the Sheriff, commanding him to make, by sale of the mortgaged premises, $910 53, with interest thereon, and $6,000 with interest thereon.
    The execution was issued without scire facias and without notice.
    Halliday thereupon filed his bill, stating the foregoing ¡facts, and other matters from which he supposed an equity might arise in his favor to have the sale stayed on his paying what by the terms of the agreement would then be due, throwing out of consideration that part of it which stipulates that on the failure to pay any instalment therein mentioned Johnson should be at liberty to proceed on the decree; and prayed an injunction staying the sale ; which was granted.
    An answer was put in by Johnson; and a motion thereupon made to dissolve the injunction.

      M. Little and A. Whitehead, in support of the motion.
    They cited 1 Green’s Ch. 444; 2 Archb. Pr. 87; 2 Tidd’s Pr. 1005, 1021, 3; 1 Sellar’s Pr. 189, 515; 2 Burr. 664; 19 John. Rep. 173; 11 Ib. 513; 8 Ib. 361; 2 A. K. Marsh. 512, 573; 2 John. Ch. 51, 526.

      C. E. Scofield and W. Pennington, contra.
   The Chancellor.

The allegations of the bill from which it was supposed an equity might arise in favor of the complainant to have the sale stayed on his paying what would be due by the terms of the agreement, independent of that part of it which stipulates that on failure to pay any instalment of principal therein mentioned Johnson should be at liberty to proceed on the decree, are, I think, sufficiently denied by the answer.

The other question is, whether, under the circumstances, it was regular to issue an execution without a scire facias. The question is tho same in this case, it strikes me, as if the agreement was between Johnson and Ford alone. Tho decree was obtained in July, 1848. The agreement was made in May, 1844. It provides that a certain portion of the amount due on the decree should be paid on the execution of the agreement; that the interest on tho balance should be paid half yearly: that instalments of f?500 each should be paid on the 1st of April after the date of the agreement, and on the 1st of April in each succeeding year, till April 1,1848, when the whole balance should be paid ; and that on failure in paying any instalment Johnson should bo at liberty to issue execution on his decree. 1 am, of opinion, that under such an agreement for a stay of execution an execution may issue after a year, on a failure to comply with the conditions on which such stay is granted, without a scire facias. The fact that something has been paid on tho decree (several half yearly payments of interest have been made according to the requirement of tho agreement) does not render if necessary to issue a scire facias. Tho case is the same in this respect as if a part of the sum decreed should be paid within the year, and an execution should bo issued within the year without a scire facias. That Johnson did not issue execution on the first default in paying a yearly instalment of principal, but waited till after default in paying the second instalment, did not defeat his right to issue execution after the second default. The injunction will be dissolved, and the complainant in the decree be permitted to proceed on his execution, endorsing thereon the amount remaining due.

Order accordingly.


author: The Chancellor

text:
    Soloman Newman v. Abraham Newman.
    The oath of a Jew complainant to an injunction bill must be made according to the form and solemnities of the Jewish religion.
    An injunction had been obtained by the complainant on a bill sworn to in the usual form.
    O. S. Halsted, Jun’r,

    on affidavits shewing that the complainant was a Jew by birth and religion, and attended the Jewish Synagogue, moved that the injunction be dissolved.

      Mr. Bradley, contra.
   The Chancellor

ordered that the complainant swear to the bill according to the form and solemnities of the Jewish religion, in ten days after service of a copy of the order, or that the injunction be dissolved.

The complainant failed to comply with the order.

Injunction dissolved.

See 1 Vernon 263, case 268.


text:
    Perrine S. Van Wagner v. Edwin Van Wagner.
    A. executed a deed of land io B., absolute cn its face; and B. executed to A. a bond, in a penal sum, reciting the deed made by A. to him, and that A. was indebted to him on two notes, stating them, and the amounts thereof; and providing that if A. should refuse or neglect to pay the said notes on or before a certain day, the bond should be void; but that if A. should, on or before the said day, pay the said notes, and the said B. should, upon due notice of such payment, thereafter neglect or refuse to convey the said land to A., the said bond should remain in force.

      Held, that the deed and bond constituted a mortgage.

      Jhld,fartJi6r, that the mortgage was not a security for moneys due from A. to B. on other accounts.
    On the 26th of April, 1845, Perrine L. Van Wagner exhibited his bill, stating that his father, James Van Wagner, died June 1, 1842, intestate, leaving his widow, Phebe Van Wagner, and four children, viz : the complainant, Edwin Van Wagner, the defendant, and Eliza Sayre, wife of Charles Sayre, and Phebe Jane Van Wagner, his heirs at law ; that the said decedent died seized of considerable real estate ; that after his death, and on or about July 21,1842, the said widow and the said Edwin, Phebe Jane, and Charles Sayre and wife, by their deed of that date, for the consideration of $4,000 expressed therein, bargained, sold, released and conveyed to the complainant, in fee simple, all their interest in the said real estate.
    That, in order to secure to the said widow an annuity during her life, in consideration of her joining in said deed, the complainant, on or about the date of said deed, executed to her his bond in the penal sum of $2,800, condition for the payment to her of $84 a year during her life ; the first payment to be made on the 1st of April, 1844 ; and, further to secure the payment thereof, the complainant, with his wife, executed to the said widow, a mortgage on the lands described in the said deed, except a part, of the first tract mentioned therein. 1842, in the penal sum of $2,100, conditioned for the payment to them of $1,050 on the terms expressed in the said condition, which are, according to his recollection and belief, for the payment, at the death of the said widow, of $350 to the said Edwin, $350 to the said Phebe Jane, and $350 to the said Charles Sayre and wife. And, to secure the payment of the moneys in the last mentioned bond specified, the complainant and his wife, on the same 21st of July, 1842, executed to the said Edwin, Phebe Jane, and Charles Sayre and wife another mortgage on the same lands and premises, excepting a part of the first tract.
    That the share of the said children and heirs at law in the lands and real estate of the said decedent, at the time of the said conveyance thereof to. the complainant, was valued at $700 over and above the said sum of $1,050 for which a mortgage was given as aforesaid to the said Edwin, Phebe, and Charles Sayre and wife. -
    That the complainant, with his wife, immediately after receiving a title to the said lands, and on the said 21st of July, 1842, conveyed, in fee simple, with the usual covenants of warranty, a part of the said first tract, being about eighteen acres, to the said Edwin, for the consideration expressed in the said deed of $800 ; and the said deed and the land described therein were intended, accepted and taken by Edwin, among other things, in full satisfaction of the said sum of $700, the valuation to him as aforesaid in the said lands and real estate.
    That on or about July 25, 1842, the complainant gave his promissory note to the said Charles Sayre for $700, payable to him or his order, eight months after date, for value received, without defalcation or discount, and which note was also subscribed by said Edwin Van Wagner, as security for the complainant, and was delivered to and accepted by the said Charles Sayre for and in satisfaction of his and his wife’s joining in the said conveyance to the complainant, and for the said valuation!»
    That, in order to secure to the said Edwin, Phebe Jane, and Charles Sayre and his wife $1,050, as an equivalent for their in■terest in the dower right of the said widow at her death, the «complainant gave to them his bond, dated the same July 21, them of $700 ; and that in or about July, 1842, the complainant gave to the said Edwin his promissory note for $300; which said two promissory notes last mentioned aro the notes mentioned and and referred to in the recital and condition of the bond hereinafter mentioned as given by the said Edwin to the complainant.
    That upon the urgent solicitation, request and demand of the said Edwin, and to secure him in respect to his being surety as aforesaid on the complainant’s said note for §700 to Charles Sayre, and to secure him in respect to the said note of $300 so given to Mm, the complainant and his wife, on or about Sept. 20, 1843, executed a deed in fee simple, absolute on the face of it, and delivered it to the said Edwin, for all the lands in the said first mentioned deed described, except the eighteen acres conveyed to the said Edwin as aforesaid ; which deed, though absolute on the face of it, the complainant charges, was given and accepted and intended so to bo by the parties to it, as and in the nature of a mortgage.
    That, at the rime of the giving the same to the said Edwin, the said Edwin made, executed and delivered to the complainant a bond, in the penal sum of $1,000, dated Sept. 20, 1848, reciting that the complainant has, by deed of that date, conveyed to the said Edwin certain lands in Morris county, being the same promises mentioned in a deed from the heirs of James Van Wagner, except a tract previously conveyed by the complainant to the said Edwin, deceased, to the complainant ; and that the said Perrine (the complainant) is indebted to the said Edwin on two promissory notes, on the first of which the said Edwin is security for the said Perrine to Charles Sayre, for $700, with interest from April 1, 1843 ; and the second of which is drawn by the said Perrine to the said Edwin, dated in 1843, for §300, and has been indorsed and guarantied away by said Edwin; that said Edwin is about to pay to the said Charles Sayre $420 on the said $700 note ; and then providing, that if the said Perrine shall refuse or neglect to pay to the said Edwin $432, or shall refuse or neglect to pay to the person entitled to the balance which will then be due on the said note for $700, or the sum of $200 on the said note for $300, on or before the 22d of March then next, then tlie said bond to be void and of no ■effect. But that if the said Perrine shall, on or before the said 22d of March, make the said several payments, and the said Edwin shall, upon due notice of such fact, thereafter neglect or refuse to convey to the said Perrine the premises, &c., by deed of that date conveyed by the said Perrine to the said Edwin, as fully as the same were by that deed conveyed to the said Edwin, then the above obligation to remain in full force.
    That, shortly after the said conveyance of the said lands to the complainant, he took the direction and control thereof, except the said eighteen acres ; and in the latter part of March, 1844, moved from the township of Bernards, with his family, and took possession thereof; that as the said 22d of March was approaching it was agreed betwee n the said Edwin and the complainant to extend the time for making the said several payments mentioned in the condition of the last mentioned bond until the 1st of April, 1845. And the complainant, as connected with this arrangement, consented that the said Edwin might live and board with the complainant upon the complainant’s moving upon the said premises ; that on his moving upon the said premises the said Edwin began to live and board with the complainant, and has continued to do so to this time.
    The bill charges, that the arrangement between him and Edwin was, that the board of Edwin was to be instead of interest on the two said notes ; that Edwin, in September or October, 1844, declared to the complainant that he should not have the said lands at all; and, about that time, ordered the complainant’s hired man to stop hauling out compost and spreading it on the land, alleging that the complainant had already more sown on the premises than he would reap ; that Edwin has otherwise, for some time past, assumed to be the absolute owner of the said premises discharged of any right or interest of the complainant’s therein, and has denied the complainant’s right to redeem the same by paying off the said notes, or in any other way; and that, about two months ago, as the complainant is informed and believes, the said Edwin offered the said lands, or the principal part thereof, for sale, to one Ebenezer C. Lindsley, who wished to purchase the same, without informing the said Ebenezer of the right and equitable interest of the complainant therein. And that the said Edwin has lately offered some part of the said lands for sale to one William Cross.
    The complainant states, that the said lands so conveyed by him and bis wife to the said Edwin, were, at the time of the said conveyance, worth to him at least $4,200, and that, with the full expectation and intention of redeeming the same, he expended large sums in improving the same, which was done with the knowledge and under the observation of the said Edwin, who then suffered the same to be done without insisting that under hi s said deed he had an absolute title to the said premises indefeasible, or in any way warning the complainant against making such outlay and expenses; that between April 1 and July 1, 1844, the complainant, with the knowledge of the said Edwin, put about 150 bushels of lime and about 50 bushels of ashes upon the said premises, and put about 1,500 shingles on the barn, and 1,100 or 1,200 ft. of oak weatherboards on the ham and shod adjoining, and moved a corn crib and smoko house on the premises, cut and made 150 chestnut rails and put them in fences on the lands, and made thereon about 150 chestnut posts, intended for use on the same; all Avhich was done under the full expectation and intention on the part of the complainant of redeeming and receiving back to himself the title to the said premises.
    That the said Edwin, on or about Sept. 22, 1843, paid on the said note of $700 the sum of $420, and that the complainant afterwards, on or about April 2, 1844, put into the hands of said Edwin $285 to pay, for the complainant, on the said last mentioned'note, which he did, on the same day, pay on the said note. And the complainant afterwards paid the balance of the said note to the holder of it, and took it up and has it now in his possession.
    That the complainant is informed and believes that the said Edwin has paid off and taken up the said note of $-300, $100 whereof was part of the consideration of $800 expressed in the first mentioned deed from the complainant and his wife to the said Edwin, so that the complainant, as appears by the said bond of the said Edwin to the complainant, was only to pay $200 upon the said $300 note.
    That on the 2d of April, 1845, the complainant, by bis agent tendered to the said Edwin $700, being the full amount of what the complainant could legally be required to pay on the said notes of $700 and $300, as well for the principal as for the interest thereof; and upon such tender required said Edwin to re-convey to him, in fee simple, by a release and quit-claim deed, free from any incumbrance thereon made by the said Edwin, the said lands and premises described in the said deed from the complainant and his wife to the said Edwin, and presented to the said Edwin a release and quit-claim to be executed by him to the complainant; but that the said Edwin refused to accept the said tender and to convey the said premises to the complainant, insisting that he had a good title to the said premises which could not be defeated by the complainant, or by any act of, or tender by the complainant.
    The bill prays, that the complainant may be permitted to redeem the said lands and premises; the complainant offering to pay the amount due for principal and interest on the said mortgage or deed in the nature of a mortgage, uj>. to the time of such tender made as aforesaid; and that the said Edwin may be decreed to re-convey the said lands to the complainant, in fee simple, free from any incumbrance made by the said Edwin thereupon, except the part excepted as aforesaid ; and that in the mean time the said Edwin may be restrained by injunction from conveying or incumbering the said lands or any part thereof.
    The injunction prayed for was allowed.
    The defendant in his answer denies that the conveyance made by the complainant to him was accepted and intended by the parties thereto to be in the nature of a mortgage, and avers that he received the said deed as an absolute deed for the property, and that the bond or agreement made by him to re-convey to the complainant was an independent agreement, to be performed by him on the conditions therein specified; and that he was ready and willing to re-convey to the complainant at the time specified in the said bond or agreement, according to the terms and conditions thereof, but that the complainant neglected to pay the moneys therein mentioned and take a re-conveyance at the time and according to the terms of the said agreement.
    He also sets up that the complainant is indebted to him on other accounts, and claims, if the complainant shall be permitted to redeem, that he should be ordered to pay, also, the amount which may be found to be due him from the complainant on such other accounts.
    Testimony was taken on both sides.
    J. J. Scofield for complainant.
    He cited 1 Green’s Ch. 264; Saxton’s Ch. 537; Rev. Stat. 658, sec. 4; 5 Mass. Rep. 109; 12 Ib. 387; 2 Story’s Eq., sec. 1018, 19; 13 Pick. 411, 15; 14 Ib. 467; 15 Ib. 259; 18 Ib. 540; 1 Wend. 437; 3 Ib. 211, 213; 7 Ib. 248; 19 Ib. 518; 2 Mass. 493, 7; 8 Ib. 159; 12 Ib. 457; 13 Ib. 309; 1 Sandford’s Ch. Rep. 56; 1 Paige 56, and other cases.

      E. W. Whelpley, contra,
    cited 6 John. Ch. 428; 4 Kent’s Com. 175, 6; 2 Edwards, 138.
   The Chancellor

said that the transaction was a mortgage, and that it was not a security for any balance due the defendant on other accounts.

Decree for complainant.


text:
    Thomas Mervine v. Samuel Vanlier et al.
    At Sheriff’s sale on Execution, caveat emptor is the rule.
    The Sheriff, at the sale, said he was selling the right and title of the mortgagor, and the crier of the sale advised a friend of his, who asked his advice aside, privately, to have nothing to do with the property; that whoever bought it would probably buy a law suit. The property, for which the complainant had agreed to pay $2,800,' was sold for $1,400. It had been a neighborhood talk that the title of the mortgagor was disputed, and the complainant had himself contributed to becloud the title. There was no allegation in the bill that the title was free from dispute; nor that any better offer had been made for the property. The Court refused to set aside the sale.
    The hill, filed March 20th, 184T, states, that on the 29th of Jan. 1842, Thomas Mervine, the complainant, bought of Thomas Welles, one of the defendants, a farm in the township of Deer-field, in the County of Cumberland, for $2800, subject to a mortgage thereon, given by Welles to Daniel Elmer, another of the defendants, dated March 29th, 1841, for $500, with interest.
    That Welles gave a deed to the complainant, with full cover nants of warranty and seizin; and that the complainant gave Welles his bond, conditioned for the payment of the said sum of $2800, and a mortgage upon the premises to secure the same ; and also assigned to Welles, as further security, a certain ground rent in Philadelphia, of the yearly value of $510, payable half yearly.
    That on the 2Sd of Dec. 1844, Elmer commenced a foreclosure suit upon his mortgage, against Welles and the complainant. That this complainant put in a demurrer to the bill in that suit, which was overruled; and afterwards filed such answer in that case as he was advised was material. That after filing the said answer, he, living in Pennsylvania, lost sight of the proceedings in that suit, relying on his counsel to keep him duly informed thereof; and that he knew nothing of the proceedings that occurred at the sale, until a long time after the sale of the mortgaged premises, in the bill after stated. -
    That in the said foreclosure suit brought by Elmer, a decree was obtained for the sale of the premises to satisfy the several sums found due to Elmer and to Welles, on their respective mortgages; anda ft-fa. was issued to the Sheriff of Cumberland, commanding him to make sale of the premises, and to dispose of the proceeds according to the said decree.
    That on the 19th of Dec., 1846, the Sheriff sold the premises. But this complainant avers, that he did not sell the same conform-ably with the terms of the said decree or of the said execution ; but that ho sold “ the right and title of the said defendants (in that suit) to the premises, if any they have,” thereby conveying the idea that it was doubtful if the said Thomas Welles and this complainant had any right or title to the same. And that, at the same time, the person who acted as crier of the\said sale informed the bidders “ that they had best have nothing to do with the property ; that they would buy a heavy law suit if they got it;” by reason of which irregular proceeding on the part of the said Sheriff, and of the representations of the said crier of the said sale, the interests of this complainant were greatly prejudiced; insomuch that persons who came to the sale to bid for the property, and were willing to give a fair price for it, declined bidding, and the same was struck off and sold for the very low sum of $1400, to Samuel Vanlicr, the other defendant in this suit.
    That there was present at the said sale at least one bidder who was willing to pay for the property, at least $2500, as this complainant has been informed and verily believes; but was deterred from bidding by the unfair mode of proceeding of the Sheriff, and the unfair representations of the crier.
    That after the sale, and before this complainant was made aware of the facts aforesaid, the premises were conveyed by the Sheriff to the said Vanlicr; and the proceeds have been appropriated, in the first place, to paying off the amount due Elmer on his said mortgage, and the balance thereof, being $656 98, has been paid into Court, subject to its order, where it now is.
    The bill prays that the said sale may be vacated ; and that Vanlier may be decreed to deliver up to be cancelled the deed received by him from the Sheriff; and that the decree on which the sale was made may be opened, in order that the title of this complainant to the property affected by the said decree may be definitively settled before a sale of tbe same, that it may not be sacrificed if the title of this complainant be good; and for such farther relief, &c.
    Samuel Vanlier put in his several answer. He says he believes $2800 was a very high price for the farm when the complainant bought it, and more than it was worth, though it was then in better order, and worth more than when it was sold by the Sheriff.
    He submits that the complainant, being a party to Elmer’s foreclosure suit, and having appeared and answered the bill in that suit, is bound by the decree made therein, and was bound to take notice and inform himself of the time and place of sale ; and that he is informed and believes, and therefore charges that the complainant in this suit was, in fact, informed of the time and place of the sale, and might have attended if he had thought fit to do so.
    He says it is not true, to his knowledge, information or belief, that the Sheriff sold “ the right and title of the said defendants (in that suit) if any they havenor is it true, to his knowledge, information or belief, that the crier of the said sale informed bidders that a they had best have nothing to do with the property, that they would buy a heavy law suit if they got it,” or any words to that effect. On the contrary, at the commencement of the sale, the Sheriff'Caused the conditions of sale by him signed to be publicly made known ; which conditions were for the sale of land the property of Thomas Welles and "Thomas Mervine, taken in execution at the suit of Daniel Elmer, complainant ; and the metes and bounds of the farm are therein fully set forth ; and the property was sold agreeably to said conditions, and a number of bids were made by different persons, until, after it had been cried for half an hour or more, this defendant being the highest bidder, at $1400, the same was publicly struck off to him; and, at the request of the Sheriff, he signed the conditions of sale.
    That, according to the conditions of sale, the deed was to be delivered and the purchase money paid on the 26th of Dec., the month in which the sale took place, on which day he paid the purchase money, and the Sheriff delivered to him a deed for the property; and this defendant, shortly after, took possession of tho farm, by renting it to Samuel Rickman, who now holds it as his tenant.
    He says lie has been put to considerable expense, trouble and inconvenience in obtaining the money to pay for said farm, and in attending to tho same since, and in making arrangements and repairs as the owner thereof.
    That he does not know what any person present at the sale was willing to give for the property. That he has no information that any one made known his willingness to give more than he, this defendant, bid. That he is informed, and believes it to bo true, that some persons were unwilling to bid for the property in consequence of the repeated declarations of the complainant in this case that Thomas Welles never had title to it, and in consequence of the well known character of the complainant for litigation. That he is informed that tho answer of the complainant in this caso to the bill of the said Daniel Elmer in his said foreclosure suit sets forth that Wolles had not a good title to the said farm; and is also informed, that the complainant in this case recently instituted proceedings in some court in Philadelphia, against Wolles, to obtain redress from him for an alleged failure in tho title, or for fraud in the sale of tho said farm by Welles to him.
    That the complainant repeatedly declared that he did not intend to pay the Elmer mortgage, but would let Elmer sell the property.
    He, therefore, submits that, though it is probably true that the said farm would have sold for something more than ho gave for it if sold on a credit, and if not subject to doubts and difficulties,ras it was, in regard to the title, under the circumstances he gave a full price ; and that, at all events, the complainant, who has himself done so much to question the title of the property and reduce the price of it, has no just cause to complain of a result produced by his own acts.
    That he is informed and believes, that Thomas Welles resides out of this State ; and that Daniel Elmer is too unwell to answer the bill, and is not likely to be well enough to do so at any timo hereafter.

      Testimony was taken on both sides.
    It was admitted by the counsel of the respective parties, that since the sale of the mortgaged premises to Vanlier, and the payment into Court of the surplus, Welles has been paid the money due to him, and has now no interest in the matter.

      W. L. Dayton for the complainant.

      L. Q. C. Elmer contra.
   The Chancellor.

At Sheriff’s sale on execution, caveat emptor is the rule. A mortgage and decree upon it to do not establish that the mortgagor had title when he made the mortgage.

The ground for the relief sought in this case is, that the Sheriff, at the sale, said he was selling the right and title of the mortgagor ; and that the crier of the sale advised a friend of his, who asked his advice aside, privately, to have nothing to do with the property; that whoever bought it would probably buy a law suit; and that the property, for which the complainant had agreed to pay $2800, was sold for $1400. This is the case made by the proofs.

The bill states that the crier informed the bidders “ that they had best have nothing to do with the property; that they would would buy a heavy law suit if they got it.” If the crier, who, it seems, was clerk of the county, had undertaken to volunteer his opinion publicly to the bidders, that they had best not, &c., (as above,) and to use the influence of his judgment publicly to deter bidding, the case would have been presented in a stronger light than'that in which it now appears. But, being applied to privately by a friend, and having heard what Mervine had said to him about the title, what was he to say ? Could he advise his friend that the title was good 1 Persons who think of bidding at such a sale must make their own inquiries, and satisfy themselves as to the title. They must not depend on inquiring of the Sheriff, at the sale, as to the title. He is not supposed to know any thing more about it than they do. And if he is inquired of, all he can say is, that he is about to sell the right and title of the mortgagor.

One part of the prayer of the bill is, that Mervine’s title may be definitively settled before the property be sold. This could not be done, if the sale should be set aside. In a bill by a mortgagee against a mortgagor, to foreclose the mortgage, the title of the mortgagor as against a third person cannot be established. And if, at the time of the sale under the decree in such suit, a cloud rests on the title of the mortgagor, it is Ms misfortune ; and he cannot expect that the property will bring its full value. It seems that one of the persons who attended the sale with a view of bidding had an idea that a Sheriff, on a sale made by him, gave a warrantee deed; and when he found this was not the ease he declined bidding. It had been a neighborhood talk that the title of the mortgagor was disputed ; and Mervine, the complainant in this case, had himself contributed to becloud the title.

Again, the complainant was’ apprized that the property was advertised for sale, and chose not to attend the sale. If he desired or thought he should be able to satisfy bidders that the title was good, he should have attended the sale.

There is no allegation in the bill that the title is now free from dispute ; nor does it show that any better offer has been made for the property, under the circumstances under which it was sold. Nor is there any such ground of assurance that the property would bring more at another sale, under the same circumstances as to the title, as to justify the Court in setting aside the sale that has been made.

Applications to open tbe biddings, before the deed has been delivered, a larger bid having been offered, have been often successful. But after the deed has been delivered, and the purchaser has gone into possession, a strong case should be required to set aside the deed. It appears to me that it would be a dangerous precedent for the Court to interfere in a case like this.

The bill will be dismissed, with costs.

Decree accordingly.


text:
    Hiram Hutchinson v. Thomas V. Johnson and others.
    If there be a serious question whether machinery in a building is covered by a mortgage, the court will interpose to prevent its removal, utíltil the question can be settled.
    The mortgagor should be made a party in a suit raising such question.
    Hiram Hutchinson exhibited his bill, sworn to on the 15th of October, 1847, stating, that on the 25th of May, 1846, Ellison Conger, Judson Conger and Alfred Conger, of Newark, were indebted to William McBeth, of that place, in $403 32 5 to Francis C. Kellinger in $366 72 ;■ to George T. Johnson in $344 82 5 to James E. Bathgate in $230 85 ; to John Faulks in $282 22; to Henry Faitoute in $185 25 ;. to James R. Bird in $200; to George C. Crane in $126 63, and to Henry Holden, Jr., in $95, making in all $2190 81; and that, being so indebted, the said Ellison Conger, for the purpose of securing the payment of the said moneys, made, executed and delivered to his said creditors, respectively, promissory notes for the said respective amounts, all dated May 25, 1846, and payable, respectively, in one year from that day ; and that, further to secure the payment of the said moneys the said Ellison Conger, with Mary P., his wife, and Judson Conger and Alfred Conger, executed and delivered to one Staats S. Morris, of Newark, in trust for the use and benefit of the said creditors, an indenture of mortgage, dated the same day, whereby they, in consideration of $1, acknowledged to he paid to them by the said Morris, conveyed to him and his heirs forever a certain tract of land and premises therein described, situate in Newark aforesaid, (the boundaries whereof are given in the bill,) being the lands and premises known as the Hope Buildings, together with all and singular the profits, privileges and advantages,- with the appurtenances to the same belonging or in anywise appertaining ; also all the estate, right, title, interest, property, claim and demand whatsoever of the parties of the first part to the said mortgage of, in, and to the same and every part and parcel thereof, to have and to hold to the said Monis, liis heirs and assigns, in trust for the use and benefit of the said creditors, and with and subject to a proviso, that if the said Ellison Conger, his heirs, &c., should pay the said moneys according to the terms, tenor and effect of the said promissory notes, respectively, the said mortgage should be void ; that the said mortgage was recorded on the 1st of June, 1846.
    That afterwards, on the 21st of April, 1847, the said notes, respectively, were indorsed by the said respective payees thereof, and the said mortgage was assigned by the said Morris to Andrew Lemassena; and that afterwards, on the said 21st of April, 1847, the said notes were indorsed and the said mortgage was assigned by the said-Lemassena to the complainant; that after-wards, to wit., on the 21st of August, 1847, the said notes were passed and the said mortgage was assigned by the complainant to Abraham Denman ; and that afterwards, to wit., on the 7th of October, 1847, the said notes were passed and the said mortgage was assigned by the said Abraham Denman to the complainant; that the complainant is the bona fide holder of the said notes and mortgage, and is the only person interested therein, and that he procured the same by paying therefor the face of the same, with a deduction of $50 ; and that he has been the real beneficial owner thereof ever since the transfer of the same to the said Lemassena as aforesaid, who, as well as the said Abraham Denman, acted only as his agent and trustee.
    That, at the time of the execution and delivery of the said mortgage, tí to said Hope Buildings therein mentioned were an extensive range of brick buildings, built for the purpose of introducing and erecting therein steam engines, for the purpose of leasing and renting out steam power, to aid in carrying on the manufacture of such products and manufactures as might he made and manufactured by any person therein who should choose to avail themselves of the said power and locate themselves in the said building.
    That the said buildings have always derived a great part of their value from being adapted in their construction to contain and employ the said machinery; that such jaachinery consists of a steam engine, shafting and such other apparatus, fixtures and machinery as is requisite to afford power in the various parts of said building, which machinery is built in and incorporated with the said building by means of bolts, walls and mason work; that entire rooms are appropriated, and constructed with a view of' being appropriated to said machinery, and that the machinery could never be taken away without tearing down and destroying parts of the said building.
    That the debts for the security of which the said mortgage-was given were such as were due from the mortgagors to the said creditors, or cestuis que trust, for stock by them, severally,, from time to time furnished the said mortgagors to enable therm to carry on their trade; and that the furnishing such stock was usually considered a cash transaction, and "not one of credit y that the persons so furnishing stock to the said mortgagors were,, many of them, persons in moderate circumstances, who would seriously feel the loss of such debts ; and that, for these reasons,, it was the 'intention, as* well of the said mortgagors as of the conveyancer who drew up the said mortgage, that it should afford the said creditors every possible security, and that it should cover all of said machinery ; and that such was the understanding of the said creditors at the time of the execution of the said mortgage; and that such were - the directions of the said mortgagors to the said conveyancer, Stá'ats S. Morris; and that the said Morris considered that in drawing the said mortgage in its present form he had framed it so as to cover as well the said buildings and machinery as the said land. And the complainant submits that such is the effect of the said mortgage, and that the said machinery was at the time of the delivery of the said mortgage so incorporated and identified with the mortgaged premises as tó be a part of the realty; and that the said mortgage, as well from the intention of the mortgagors and the intendment of law as the language of the same, covers the said machinery.
    That it has always been understood that the said mortgage covered the said machinery, and that it was part of the estate ; that it has be«n so understood by numerous creditors of the said mortgagors, and, as the complainant believes, by those who are subsequent to him in their mortgages on the said premises; that although many creditors of the mortgagors have had judgments against them, and have sold, by virtue thereof, all their available property, yet no pretence lias ever been made that the said machinery was personal property distinct from the said real estate.
    That, before the machinery above referred to and afterwards specified in the hill was placed into and incorporated with the said buildings, the said mortgagors made, executed and delivered to one Mary Jones two mortgages on the said lands and buildings, which were duly acknowledged and recorded, and constituted the first lien on the said lands and buildings ; but, as the complainant is informed and believes, did not in any manner charge, incumber or affect the said machinery.
    That the said mortgagors then executed two other mortgages, to secure sums of money therein mentioned, one to Andrew Stark, and the other to Charles A. DeHart, which mortgages were all inumbrances on the said lands and buildings prior to the mortgage of the complainant; and also executed six other mortgages, to secure the sums therein respectively mentioned; which six last mentioned mortgages cover the same lands, buildings and machinery as are covered by the complainant’s said mortgage; and which mortgages wmre given, one to Alfred Mead, one to Thos. V. Johnson, one to Lewis C. Grover, and, as the complainant is informed and believes, assigned by said Grover to said Johnson, one to Staafcs S. Morris, one to George Lewis, and one to Edward S. limess and Joseph It. llollinson ; and which said last six mortgages were recorded, as the complainant is informed, in the order of priority in which they are here stated ; by virtue of which said last six mortgages the said Mead, Johnson, Morris, Lewis, and limess and Xlollinson claim to have some lien upon the machinery which was situated in the said Hope buildings at the time the complainant’s mortgage was executed; but that the said last six mortgages are subsequent to the mortgage of the complainant.
    That, on the 14th of April, 1847, a final decree was made in this court in relation to the lands and premises covered by the said mortgages given to Mary Jones, and in relation to no other property, in a certain cause therein depending, wherein the said Mary Jones was complainant, and the said Stark, Johnson, Morris, Lewis, DeHart, Mead, Inness, Rollinson and others were defendants.
    That by the said decree it was decreed that the premises mentioned in the mortgages of the said Mary Jones, the complainant in that suit, but not the machinery mentioned in the mortgages of the said Mead, Johnson, Lewis and others, defendants therein, and which was not contained in the mortgages of the said Mary Jones, should be sold to pay the mortgages of the said Mary Jones, and of such defendants in the said suit as held mortgages on the premises so ordered to be sold, according to the priorities of the same, as settled by the said decree.
    That the Sheriff, by virtue of a fi. fa. issued on the said decree, did, on the 27th of September, 1847, sell and strike off, at public auction, to the complainant, the premises so directed to be sold, for $7,000 ; and on the 6th of Octobor, 1847, delivered to the complainant a deed therefor; that the Sheriff, with the proceeds of said sale, paid off, according to the directions of the said decree, all the mortgages which, as hereinbefore stated, were prior to the mortgage of the complainant, and with the residue of the said proceeds did pay on the mortgage of the complainant the sum of $553 28.
    That the said Charles A. DeHart, on or about July 29, 1847, became the purchaser of the said mortgaged premises, for a period of one year, at a sale of the same then made under the provisions of an act of the Legislature, entitled a further supplement to the act incorporating the city of Newark, authorizing the sale of real estate in Newark for taxes ; and that, on or about the 7th of August, 1847, the said Charles A. DeHart procured all the interest by him so obtained to the said premises to be conveyed by the collector of arrears of taxes for the city of Newark to the said Thomas V. Johnson; and that the said Johnson therupon took possession of the said mortgaged premises, or of such part thereof as contained the said machinery ; that by an act of the Legislature, passed January 26, 1844, provision is made for the redemption, by the lawful owner, of property so sold for taxes, within one year after such sale, by paying or tendering to the purchaser at such tax sale the amount paid by him for premises so sold for taxes, with an addition at the rate of 12 per cent, per annum thereon from the time of such sale.
    That the complainant, after he had received the said Sheriff’s deed, and on the 6th of October, 1841, tendered to the said Thomas J. Johnson $106 50 in specie, being the full amount so paid by said DeHart to the said collector for the said property, with the addition of 12 per cent, thereon as aforesaid. That the said Johnson then refused to receive the money so tendered, or to deliver up the deed executed by the collector to 1dm, or to give the complainant possession of the said premises; whereupon the complainant made an affidavit of the said facts, according to the act last aforesaid, and delivered such affidavit to the Treasurer of the city of Newark, and thereupon paid to the said Treasurer the said last mentioned sum of money, who gave the complainant a receipt for the same, annexed to the said affidavit, specifying, in the said receipt, that the said money was paid for the purpose of redeeming the said premises; and gave the complainant such certificate as is required by the said last mentioned act, which certificate, being duly acknowledged by the said Treasurer, was thereupon filed in the office of the Clerk of the county of Essex ; and the said Johnson was also informed by the said Treasurer that the complainant had paid him the said sum and the said interest, and that the said Johnson could have the same at any time; by virtue of which premies, the complainant became entitled to the immediate possession of the said mortgaged premises ; and that he demanded possession thereof of the said Johnson, who refused to deliver possession to him, and still unlawfully prevents the complainant from taking possession of the said premises.
    That the said DeHart, or the said Johnson claiming under him, never acquired by the purchase at the said sale for taxes anything more than a lien on said premises, which lien has now been extinguished by the complainant’s having followed the directions of the said act for that purpose enacted ; but by reason of the anomalous proceeding by which the said lien is by said act directed to be extinguished, the complainant would bo embarrassed, if not entirely defeated, in acquiring the possession of the said premises by the usual remedies for that end afforded in courts of law. That the said amount of taxes and interest was also tendered to the said Johnson, on the 28th of September, 1847.
    That the said Johnson, so having possession of the said premises, on the 4th of October, 1847, undertook to sell at public vendue, in Newark, the said machinery, and gave out at the said sale that he would, immediately on the said sale being made’, deliver the said machinery.
    That the complainant apd the said Abraham Denman, who was then the assignee of the complainant’s said mortgage, by F. T. F., their attorney, forbade the” sale of the said machinery, because the said Johnson had no authority to sell the same j because 'the said machinery was so incorporated with the said buildings that it could not be separated therefrom without waste and injury to the said buildings and machinery, and because the mortgage now .the property of the complainant was the first lien thereupon; but that Johnson diregarded such notice and proceeded with the sale, and the machinery was struck off for $2,885, either to the said Johnson or to the said Xnness & Rollinson.
    That the complainant and the attorney of the said Denman demanded efLJehnson some writing to show the sum for which the machinery was sold, and who was the purchaser thereof; but that Johnson refused to give any information or any voucher or security in relation to the transaction..
    That, on the 6th of October, 1747, Johnson, with a large number of men, commenced to break the walls and mason work of the said Hope buildings, for the purpose of disconnecting the said machinery from the said building, and was so engaged during the whole of that day, and thereby did great damage as well to the said machinery as to the said building.
    That Johnson, on the said 6th of October, sent off a large and valuable part of said machinery to the city of New York, and near midnight of the same day. was engaged disconnecting and carrying away the residue of the same, and was only prevented from so doing by the order of this court; that the reason of Johnson’s making such haste to extricate the said machinery was, that he expected and feared the injunction of thiii court to arrest his progress, knowing that he was unlawfully employed; that Johnson has at this time a considerable part of the said machinery on the wharf in Newark, which, together with such machinery as remains in the building, he intends, unless restrained by the injunction of this court, to transport to the city of Now York; that, in consequence of said Johnson’s so unlawfully selling the said machinery, it sold for a price far below its real value.
    That Johnson now holds on to the possession of a large parof the said buildings, without deriving any benefit therefrom, as the same is unoccupied ; that the windows of the said buildings are out, and the doors off, and that Johnson will not permit thcomplainant even to put the said buildings in such situation as to prevent their receiving further damage.
    That there is due to the complainant, on his said mortgage, $1,811 63; and that he has applied to the mortgagors to pay ■the same, and to the said Johnson, Mead, Morris, Lewis, Inness and ltollinson to pay the same, or to release to him all their right, title, and equity of redemption of, in and to the said mortgaged premises, and suffer him peacebly to enter and possess the same.
    The bill prays that the defendants may answer the premises, and that Johnson may set forth what machinery he has removed or carried, or suffered to be removed from the said buildings; and that the defendants may be decreed to pay to the complainant, by a short day, what may be found to be due him on the said notes and mortgage ; and that, on failure thereof, they may be foreclosed of and from all right and equity of redemption of, in and to the said machinery so as aforesaid situated in the said Hope Buildings at the time of the delivery of the complainant’s mortgage, and of all right and title to the said lands and premises so conveyed to the complainant by the said Sheriff', by reason of any pretended lien arising from the purchase of the same by the said DeHart, for taxes, as aforesaid, or from the conveyance by the said Collector to the said Johnson; and may deliver possession of the said machinery, lands and premises to the complainant; and on failure to pay what may be found due to the complainant, that the said machinery may be sold to pay the same, and that .Johnson may be enjoined from resisting the complainant in •taking possession of the said lands and premises so redeemed by him from the lien which the said DeHart and Johnson once had thereon for the money paid by DeHart for taxes on the said premises; and that the said Johnson and Inness & Rollinson, their agents, &c., may be enjoined from injuring the said buildings, and from moving or in any manner disturbing any machinery therein contained, or from taking or removing from Newark any of the machinery which was in the said buildings on the 30th of May, 1846, the time of the delivery of the complainant’s said mortgage, or at any time thereafter, and from selling any part of the said machinery; and that it may be referred to a Master to ascertain and report what machinery has been removed from the said buildings by the said Johnson or any other of the defendants, and what was the true value of such machinery immediately before it was removed; and that Johnson, or such other defendant so removing the same, may be decreed to pay to the complainant the value of such machinery before removed with interest thereon, and for further relief. Thos. V. Johnson, Alfred Mead, Staats S. Morris, George Lewis, Edward S. Inness and Joseph R. Rollinson are made defendants.
    On the reading of this bill, F. T. Frelinghuysen and. Wm. Pennington moved for an injunction pursuant to the prayer thereof.
    They cited Co. Litt. 53; 2 Smith’s Leading Cases, 160, 1, 2; Ib. 99, 16, 7, 8; 1 East. 38; 5 Peters L. Ab. 702; 1 Atk. 175; 16 Eng. C. L. Rep. 61; 7 Ib. 272; Grady on Fixtures, 8, 13; 1 H. Bl. 261.

      O. S. Ilalsted, jun’r, and A. Whitehead, contra.
    They cited 3 Green’s Ch. 148; 1 John. Ch. 317; 6 Ib. 46; 7 Ib. 333; 2 Green’s Ch. 279; Hopkins’ Ch. Rep. 135; 17 John. Rep. 116; 9 Coun. Rep. 63; 3 Atk. 13; 5 Vern. Rep. 142; 14 Mass. Rep. 352; 6 John. Rep. 5; Drury on lnj. 187.
   The Chancellor.

The question is, whether the injunction prayed for should be granted on the facts stated in the bill.

The main question involved is one of great importance, and in reference to which, and to the decisions touching it, it may be said that there is great uncertainty and perplexity. The decision on the present motion is not founded on any ultimate conclusion on the main question. I go on the ground that the facts stated in the bill, present, in my judgment, a question within the jurisdiction of the Court, and .in reference to which a party to this controversy should not be permitted to act on his own construction of the complainant’s mortgage, and remove the property claimed to be covered by it out of the jurisdiction of the Court.

To refuse the injunction now, would be to decide, that the complainant cannot, under the facts stated in the bill, or any proofs that may be made by him under the bill, have any lien on the machinery by virtue of his mortgage, because a denial of the injunction would be leaving Johnson at liberty to carry out his design of removing the property out of the State, and thus out of the reach of any decision the court might make on the question whether the complainant has such lien. It is no answer to this to say that Johnson is a man of responsibility. If the complainant has a lien on the machinery, no personal responsibility can bo substituted for such lien without his consent.

As to the argument that Johnson Avas a mortgagee in possession of the machinery, and had, therefore, a right to sell it, this assumes that it was personal and not a part of the realty. It assumes, too, that by his purchase of the realty for taxes he was in possession of the machinery as personal property, and that after Johnson’s right in the realty was extinguished by the tender of the amount paid at the tax sale, and the interest thereon, in compliance with the provisions of the statute for redeeming property sold for taxes, he remained in possession of the machinery as personal property; and assumes, that AA'here there are several mortgages on personal property, and one of the mortgagees is in possession, he may sell it at public auction on notice.

If the complainant’s mortgage covered the machinery, it is a plain case for the interposition of the court to prevent its removal ; and if, nnder any proofs that may properly bo made under the bill, it may appear that the complainant is right in his construction of his mortgage, it is proper that the court should hold the property within its jurisdiction till the question involved can he satisfactorily decided.

An injunction will be allowed. The mortgagors should be made parties defendants.

Injunction allowed.