text:
    Peter M. Ryerson v. James Boorman and others.
    On a foreclosure bill, a general decree for the sale of all the mortgaged premises bad been taken, and afi.fa,. for sale issued thereon; and the Sheriff had struck off the whole property at one bidding, for §15,000. Before a deed was given by the Sheriff,, the defendant in the decree and execution filed a bill, stating that the property was worth §60,000, and consisted of distinct tracts; and, also, that a mistake had been made in the newspaper advertisement by which the descriptions of the different tracts were erroneously given; and prayed an order directing the Sheriff not to deliver the deed. The order was granted; and the sale was subsequently set aside, and an order made that the property be sold in parcels, if the defendant in the decree and execution so requested.
    The hill, filed October 1847, states that on the 10th of August 1839, James Boorman, John Johnson, Daniel Ayres and Adam Nome transferred to Peter M. Ryerson, the, complainant, $17,500 of the stock of the North American Trust & Banking Co., of Now York, at par value ; that the complainant-then gave them a bond and mortgage to secure the said sum and interest; and that, on the 21st October 1889, they transferred to the complainant $5,000 more of the said stock, at par value, and the complainant then gave them another bond and mortgage to secure the last mentioned sum with interest; both mortgages covering nearly the same property.
    That the said Boorman, Johnson, Ayres and Norrie, on the 1st of July 1844, filed their hill to foreclose the said two mortgages ; that the complainant thereupon employed counsel to defend the said suit, being advised and believing that he had a good defense, and that the said bonds and mortgages were invalid ; that while said suit was pending he entered into negotiation with the said complainants therein to settle the said difficulties in an amicable manner; that, pending these negotiations, he delayed putting in his answer to the said hill in consequence of this negotiation, and that he was surprised by hearing that a decree had been taken in said suit by default, on the 2d day of April 1845, for $27,727 24, that being the full amount of the said principal and interest on the said two bonds and mortgages, and that execution had been issued on the said decree.

      That he thereupon, shortly afterwards, saw Mr. James Boor-man,-one of the said complainants, who in consideration of the premises agreed, on the part of the said complainants, with him, Byerson, to the purport and effect following, that is to say: that the whole claim of the complainants should be reduced to $20,-000 ; that this.sum should be paid in instalments as follows : on the 1st of July 1846, $1,000 and the interest on $20,000 for six months; on the 1st January 1841, $1,000 and the interest on the balance of the $20,000 remaining unpaid; on the 1st of July 1841, $1,000 and'the interest on such balance; on the 1st of January 184§, $500 and interest on such balance; on the 1st of July 1848, $500 and interest on such balance ; on the 1st of January 1849, $500 with interest on such balance ; on the 1st of July 1849, $500 with interest on such balance ; which would then reduce the amount to $15,000; and that this last sum should, upon payment of the interest thereon semi-annually, remain as a permanent debt during the life-time of the said Boor-man, if he, Byerson, should desire it; and that he, Byerson, should pay the costs of the said suit and a counsel fee of $20 to the solicitor of the said complainants in their said suit, and the costs of the Sheriff who had the said execution.
    That the said Boorman thgn reduced the said agreement to writing, by addressing a letter which he then wrote in his, Byerson’s, presence, to Mr. Ogden, the solicitor of the complainants in their said cause, stating the substance of the said agreement, except that part relating to the sum of $15,000 not having to be called for, &c.; that being a voluntary offer on the part of said Boorman.
    That in consequence of this agreement he, Byerson, did not proceed to get the said decree opened and to set up the said defence to the said bill.
    That ever since the making of the said agreement the said complainants have treated the said debt as a debt of $20,000 ; that they balanced their books, leaving this sum as the debt due; and that he, Byerson, has since paid the interest on the said sum of $20,000 to January 1, 1846, he having agreed to pay such interest; and that this interest was received by the said complainants in full for the interest on the said claim; that he, Byerson, has also paid to the solicitor of the complainants his taxed costs in the said suit and his counsel fee of §20, as agreed upon; and that he also paid to the Sheriff his costs on the said execution, calculating his per centage upon the said sum of $20,000 ; that the said complainants directed the said Sheriff to desist from selling, and he thereupon desisted.
    That by reason of said agreement made to settle the said law suit, and reduced to writing as aforesaid, and in part performed as aforesaid, the said decree ought to have been credited so as to reduce the amount to $20,000, as agreed upon, and to have the said amount payable in instalments, at the several times agreed upon.
    That the property covered by the said mortgages consists of nineteen different tracts of land, (stating them).
    That, the said sum of $20,000 beiug agreed to be paid in in stalmonts, he is advised that it should have been referred to a Master to see what amount was duo the complainants, and that a part only of the mortgaged promises, sufficient to pay the amount so reported to be duo, should have been decreed to be sold; and that the said complainants ought not to have sold the whole of the said mortgaged premises, inasmuch as only a part of the said $20,000 was then due and payable.
    That the Sheriff of Passaic advertised the mortgaged premises to bo sold under the said decree and execution, and adjourned the sale to October 15,1847; and that he, Ryerson, called on the said Sheriff the day before the said sale, to know for what amount he intended to sell the said property, and the said Sheriff' answered that he intended to sell the same for the full amount of the debt, interest and costs, as directed by the said execution.
    That, on the said 15th of October, the said Sheriff' sold the said 19 tracts under the said execution; and that one John T. Johnson bid for the said 19 tracts $15,000; and that no other bid was made; and that the property was struck off to him for that sum. That the said J. T. Johnson attended the said sale as the agent of the said complainants, and gave directions as to the sale ; and that he, Ryerson, believes that the property was bought for the said complainants ; that the deed has not yet been given, but is to be given on the 1st day of November next.

      That the property was advertised for sale hy the Sheriff in the Paterson Intelligencer, and that the description of the 15th lot is not correctly given, but contains a part of the 15th lot and a part of the 19th lot also ; that the description of the 16th lot is not correctly given, but contains a part of the 16th lot and a part of the 19th lot; that the description of the 19th lot, being the 3000 acre-lot, is altered and wrongly placed in seven different places in the said advertisement, so that no sense can be made of it, as by reference to the said newspaper will appear ; and that the advertisement for the sale of the said property was not inserted in any other newspaper.
    That these tracts of land are so situated that most of them could be sold separately; the first five tracts being more than four miles distant from the other tracts ; that he is advised and charges that the sale of the whole of this property, consisting of 19 different parcels, and containing in all 4490 acres, at one bidding, was illegal; that it ought to have been sold in parcels ; that a sale as made would prevent any person from bidding except a man of very large property, and would sacrifice the interest of the complainant, especially as the apparent claim of said complainants was very large. He charges that- the property so sold by the Sheriff is worth $60,000, and that the sale for $15,000 was a sacrifice of the property ; that the mistakes in the said advertisement affect the whole sale, inasmuch as but one bid was made for the whole property.
    The bill prays that the decree may be vacated, to enable him to prove and establish their said agreement, and to ascertain the amount due on the said bonds and mortgages ; or that the decree should stand only for the amount agreed to be due thereon as aforesaid, and also to ascertain how much is due and payable ; and that execution should only issue for the amount that shall be due and payable ; and that, in the meantime, the bidding be opened, and the Sheriff be directed not to deliver a deed to the said- Johnson; and for further relief.
    On this bill an order was made directing the Sheriff not to deliver the deed until the further order of the Court.
    On the 25th of January, 1848, the defendants Boorman, Johnson and Ayres put in an answer. They say that they, with the defendant Nome, on and prior to August 10,1889, were partners, in the city of New York ; hut that prior to September 12, 1845, the said firm went into liquidation; and that Norrie is now and for some time past has been in England.
    They say that, the complainant being indebted to the said firm in $12,500 for the purchase of machinery &c. of a steam rolling mill, and in $17,500 for money agreed to ho lent and advanced by them to him, of which sum of $17,500 $1,000 had been lent and paid to the said complainant on the 25th of November previous, and the further sum of $12,000 was paid to him in cash and notes equal about to money (discount -being allowed) on the 4th of December following, and in conformity with the terms of the agreement in the premises, the remaining sum of $4,500 necessary to make up the said amount of $17,500 was retained to be paid thereafter, when certain improvements should be made on the proporty mortgaged as hereinafter mentioned ; the complainant being indebted as aforesaid, on the 1st December 1837 executed and delivered to them bis bond conditioned for the payment of $30,000 and interest, and to secure the payment thereof, executed, with his wife, at the same time, and delivered to them a mortgage for that amount on property in Passaic county, New Jersey, called the Forge lot, upon which the said machinery was to he erected, and on a part of another lot called the Post farm. That afterwards, the said Ryerson, being desirous of effecting a large loan from other parties on the said property, applied to the defendants to change the security for their said claim, and to give up the said mortgage to he cancelled, and proposed to place in their hands stock of the North American Trust & Banking Company as their temporary security, in lieu of the said mortgage, and such proceedings were had on his said application, that, on or about December 6, 1838, the said Ryerson transferred to them 850 shares of the stock of the said Trust & Banking Co., of which, 300 shares were to he held by them as collateral security for his indebtedness to them, in lieu of tbo mortgage security surrendered, and in no other manner, and the remaining fifty shares were included in the transfer for the temporary convenience of the said Ryerson, and, were at his request transferred, on or about the 9th. of January following, to one Wm. Boeraem ; whereupon they cancelled the said mortgage, and gave it up to Ryerson to be cancelled of record; that the said 300 shares of the said stock remained in the names of the defendants till the 28th of August following, when Ryerson, having executed and delivered to them another bond for $17 500 and a mortgage to secure the same, dated the 10th of August preceding, 75 shares of the said stock were transferred to the said Ryerson, and it was agreed to transfer and surrender 100 shares more of the said stock when certain judgments and a prior mortgage on the property mortgaged to them should be paid off; which 100 shares were transferred to Ryerson on or about the 7th of September following; and on or about the 2lst of October following, (1839,) Ryerson executed and delivered to the defendants another bond of that date, for $5,000, with a second mortgage on the property previously mortgaged, to secure the said bond ; and on the 26th of said October, 1839, he paid to them $3,000 in cash, and $452 37 for interest that had accrued on his indebtedness to them ; thus reducing the said indebtedness to $22,500, the amount of the said bonds last mentioned ; whereupon the defendants transferred to Ryerson the remaining 125 shares of said stock which had been held by them as collateral security for such indebtedness.
    They say that the two bonds and mortgages stated in Ryerson’s bill of complaint were given to them as security for so much of the original debt as remained unpaid, and upon no other consideration; and that the stock referred to in his said bill was the stock of Ryerson, held by them as aforesaid as collateral security for his said indebtedness to them, and in no other manner.
    That the said mortgages not being paid, they filed a bill to foreclose, &c.; that in or about October, 1844, Ryerson and his wife filed a demurrer; that in January, 1845, the said demurrer was overruled ; that in April, 1845, a decree fro con. was taken in default of an answer, and a final decree for sale, to satisfy and pay $27,727 25, the principal and interest due on the said mortgages ; that on or about May 2,1845, a fi. fa. was issued to the Sheriff for the sale of the said premises.

      They deny that Ryerson had any good defense to make in the said suit, or that while the same was pending he ever pretended to them or any of them that he supposed he had any defense to make, or that he ever entered into any negotiations with them or with Norrio to their knowledge or belief, to settle any pretended difficulties; or that anything transpired between them to delay or interfere with him in putting in an answer to their bill. And the defendant Boorman denies that pending the proceedings for foreclosure he ever entered into any negotiation with Ryerson for suspending such proceedings in any manner, or gave Ryerson any reason to believe he would do so, other than as follows, to wit: on or about March 25, 1845, Ryerson called on him at his counting-room in New York, and proposed a compromise of the claim above mentioned on the ground of his inability to pay the whole ; that this defendant then offered that, provided Ryerson would immediately pay the interest due from February, 1844, with the costs which had then accrued, he would give directions to his solicitor to take a decree for §20,000 only, believing from the representations of Ryerson that the property mortgaged would not sell for more than that amount with interest and costs ; and did further offer to allow Ryerson five years to pay the said amount, the interest thereon being paid semi-annually, and §1,000 a year on account of the principal; which arrangement Ryerson promised to fulfil; hut he utterly failed to pay tho interest duo, and costs, or any part thereof; therefore no instructions were given by this defendant to his solicitor to suspend proceedings, or to takq a decree for less amount than the whole of the claim.
    That the premises were advertised to be sold on the 6th of October, 1845-
    Boorman says that, on or about September 12, 1845, Ryerson again called on him and made certain other propositions respecting tho payment of said mortgage claim and decree, to prevent a sale of his property, which this defendant, in behalf of the parties in interest, not wishing to purchase the property, agreed to accept if the arrangement should be completed on or before October 1, 1845, and that thereupon he wrote to Mr. Ogden, their solicitor, as follows :

      Mr. P. M. Ryerson has made a proposition to us to preclude -a sale of his property under mortgage to us, and we are inclined to accede to it if the arrangement is completed on or before the 1st of October. It is as follows : that he shall, before that period—
    1st. Repay you the amount we have paid you for taxed costs and counsel fees, and any other costs incurred and counsel fees due you.
    2d. That he shall pay you interest on the sum of $20,000 from February 1, to August 1, §600 and §500 in reduction of the assumed principal of $20,000, 500 making §1100 to be paid you for remittance to us free of charge. These payments being made, we are willing that you shall, as our attorney, enter into a stipulation for us that, on the payment as follows of the further sum of $19,500, with interest semi-annually from the 1st of August last till paid, we will discharge him and release the property mortgaged to us. The understood periods for the payment of the said assumed principal sum of §19,500 are : §1,000 on the 1st of February next; §1,000 on the 1st of August next; $1,000 on the 1st of February, 1847 ; §1,500 in semi-annual payments of §500 each till the assumed principal is reduced to §15,000.
    “ This stipulation is given with a reservation of all due rights under the mortgages and decree of sale, provided the stipulated payments of interest and on account of principal are not regularly made to us in New York.

      “ Mr. Ryerson has further to pay fire insurance on the house for one year, per memorandum subjoined, which we have paid and which has not been included in the decree, and also to pay fire insurance annually on $3,000 on the buildings insured, till the whole debt is cancelled.

      u If you see any legal obstacle or objection to the arrangement tending to invalidate our security on the property, these propositions fall to the ground; otherwise you can carry them into effect, and suspend all further proceedings other than such as are necessary to keep our security alive.”

      Boorman denies that the said proposition was made or entertained upon any allegation on the part of Ryerson that the mortgages were invalid, or that ho should apply to the court to open the decree and permit him to defend on the merits of the cause; and ho also denies that the principal of $20,000 was assumed upon any such consideration; but says that, some time before the said proposition was made by Ryerson, the amount of that asset was separated by those interested therein, and was transferred to two accounts ; $20,000 thereof to the account of debts considered good beyond a question, and the balance, which then stood at $6091,42, to an account of debts considered doubtful; and that such apportionment was not based upon any idea that the bonds and mortgages could he impeached, hut upon thoir belief that the premises would not yield more than $20,000; and tliat they have made no alterations in the accounts since the aforesaid proposal was made by Ryerson.
    That Ryerson did not make any payment whatever on or before the said October 1, 1845; that the sale was adjourned to November 6,1845, and from time to time till the 14th of Feb’y, 1846 ; and that in the latter part of January, 1846, as he is informed by his solicitor, and therefore admits, Ryerson paid up the costs and counsel fees and insurance and Sheriff’s costs, and also $1100 on the debt. That Ryerson then urged his inability to pay the $1,000 principal which he stipulated should he paid on the 1st of February, 1846, and asked for further time; and thereupon this defendant applied the sum of $1100 so received from Ryerson to the payment of the interest on $20,000 for eleven months, up to the 1st of January, 1846, and consented, by a letter written to Mr. Ogden, to receive $1,000 of the principal on the 1st of July, 1846; $1,000 on the 1st of January, 1847 ; $1,000 on the 1st of July following; $500 on each of ■&c., and the balance of the assumed principal of $20,000 on the 1st of July, 1850, and interest semi-annually on the 1st of .July and January in each year.
    The defendants say that no agreement was ever entered into by them with Ryerson, nor by Mr. Ogden on thoir behalf, other than the letters of instruction before referred to. That Ryerson failed to pay any principal or interest on the 1st of July, 1846; 'that in November, 1846, no further payments having been made, they instructed the Sheriff to sell; that in February, 1847, they passed the management and agency of the said claim into the hands of the defendant John T. Johnson, who has since that time had the control and direction thereof.
    That after the property was re-advertised, Ryerson applied for postponements upon promises to make payments on account; but without pretending that he was entitled to have the decree opened or corrected, or that a part only of the mortgaged premieses should be sold to meet the payments he had neglected to make semi-annually.
    That they are informed by the defendant J. T. Johnson, and believe, that Ryerson applied to him from time to time, after betook the management of the cp.se, for further adjournments, and that the sale was frequently postponed, with his consent, upon Ryerson’s assurances that he would make payments on account of the execution ; but that he paid no money except $200 in March last; and that in the communications between Ryerson and the said Johnson, Ryerson did not pretend that there was any existing agreement between him and the defendants for a reduction of the decree, or for deferring the payments ; but on the contrary, that he made various and repeated new proposals' to said Johnson to obtain time to discharge the amount due on the said decree.
    They admit that, after the mortgaged premises had been correctly advertised in the newspaper for several insertions, by some-accident or mistake on the part of the printer, or through some other means, transpositions occurred whereby the descriptions of ■some of the lots became intermixed with others and confused ; but they say they are credibly informed and believe that the advertisement from which the Sheriff read the descriptions at the day of sale was correct; and that there was no suggestion or complaint made by the complainant, or any other person, at the sale, that the advertisement in the newspaper was confused or unintelligible. That the complainant Ryerson and his counsel were both present when the said property was exposed for sale ;. that neither of them objected to the Sheriff’s proceeding to sell,, or stated any irregularity in the advertisement in the newspaper; nor requested that the property should be put up in separate parcels, or that any part should be offered by itself; but, on the contrary, that either the said Ryerson or his counsel, in answer to a question propounded, distinctly stated that Ryerson had no objections to make against the Sheriff’s proceeding with the sale.
    That they are informed and believe that the Sheriff did not name any sum which was to be raised by the sale ; and that they did not instruct him to sell for the costs and payments that had been made by Ryerson; nor do they believe that the Sheriff told Ryerson that he intended to sell for the said costs and payments.
    That they believe the property to be more valuable together than if broken into parcels ; that it would be difficult to fix a proper and separate value on each parcel ; and that by such a sale the security of their debt would be greatly jeoparded.
    On this answer, a motion was made to vacate the order staying the sale.

      F. T. Frelinghuysen in support of the motion.

      B. Williamson and A. S. Pennington contra.
    They cited 1 Green’s Ch. 182, 196, 7.
   The Chancellor.

I think the sale should be set aside, and the property be advertised anew. As to the manner in which the property shall be sold, the like order will be made as was made by agreement of counsel for the sale of the same property in the case of the Greenwich Bank against Ryerson; which was, that the property should be sold in parcels if Ryerson requested it.

As to the question whether the amount of the execution is to-be hold to be reduced to $20,000, 1 will hear any testimony the parties may offer in time for the consideration of it before the property can be brought to a sale.

Motion denied.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Margaret Rutgers v. Joseph Kingsland and others.
    If a mortgage is, by mistake as between mortgagor and mortgagee, so drawn as to exclude land which they intended it should include, and the mortgage is recorded as drawn, and the lands not included in it are sold to a bona fide purchaser without notice of the mistake; or lands as well those included as those not included in the mortgage but intended to be, are sold together with other lands not intended to be included in the mortgage, subject to such mortgage on a part of them, to a bona fide purchaser, without notice of a mistake, the mistake will not be corrected as against such purchaser.
    A subsequent purchaser from such bona fide purchaser without notice will hold the laud not included in the mortgage free from the mortgage, although such subsequent purchaser knew of the mistake; because, by purchasing from him who bought in good faith without notice, he would acquire all his rights and equities.
    A subsequent purchaser, bona fide and without notice from afirst purchaser who had notice of the mistake will hold the land not included in the mortgage free from the ( mortgage; because his equity would be at least equal to that of the mortgagee.
    la July, 1836, Ralph. Pomeroy and wife conveyed to David S. Brown, in trust for himself and certain associates, certain lands situated in the township of Belleville, in the county of Essex, containing about 33 acres, with a mill site and mill and dwelling-house thereon for $40,000, subject to a mortgage given to Gerard Rutgers. Brown gave a bond to Pomeroy for $12,000, part of the purchase money, payable in five years, with interest; and to secure the payment of the bond, gave a mortgage to Pomeroy on a part of the said land, particularly describing the said part by courses, distances and landmarks, and as containing six acres, be the same more or less.
    In Oct., 1836, in order to relieve the property from the Rutgers mortgage, and enable Brown and his associates to sell, free from incumbrance, all the property except what the mortgage from Brown to Pomeroy covered, Pomeroy, who was in some way interested with Brown, gave to Margaret S. Rutgers, who then held the said Rutgers mortgage, and on which only $5000 was then due, his bond conditioned for the payment of $5000 in one year, with interest; and, on the same day, assigned to the said Margaret the said mortgage given by Brown to him, which ■assignment contained a proviso that if Pomeroy should pay to the said Margaret §5000 and interest thereon according to the condition of his said bond to her, the said assignment should he void. And thereupon the said Margaret gave up the said Rutgers mortgage to he cancelled : and it was cancelled.
    In March, 1888, Brown filed a hill against his associates, twenty in all, stating advances made by him in relation to the 'properly, and that the bond and mortgage given by him to Pomery remained unpaid; and praying an account; and that what may he found due to him may be paid; and that the mill, fixtures and machinery, together with the land adjoining, may be sold for that purpose.
    On the 19th of Oct., 1848, a final decree was made on Brown’s Said hill for the sale of the whole of said lands, the 83 acres, without prejudice to the interests of any person holding the said mortgage given by Brown to the said Pomeroy, to raise and pay to Brown the sum of §15,826 01, which included the principal and interest then due on the said mortgage. Kfi.fa. was accordingly issued; and by virtue thereof, all the said lands, the 38 acres, were sold, subject to the said mortgage, to Charles Mix, who was one of the said associates ; and all the said lands were conveyed to him, subject to the said mortgage, by deed dated April 27,1839.
    On the 28th of August, 1840, Jos. Kingsland recovered a judgment against Charles Mix, for §519 34, on which afi. fa. against goods rand lands was issued; and on the 10th of Oct., 1840, Wm. Mix recovered a judgment against Chas. Mix for $2867 71, on which a fufa, against goods and lands was issued. These executions wore levied on all the said property described in the said deed to Chas. Mix.
    In Fob. 1841, Margaret Rutgers filed her hill to foreclose the said mortgage given by Brown to Pomeroy and by Pomeroyassigned to her, stating, that in Oet. 1836, there was §5000 due to her on the Gerard Rutgers mortgage, and that Pomeroy gave her his bond for the said §5000, and as collateral security therefor assigned to her the said Brown bond and mortgage; and that thereupon she delivered up the said bond and mortgage to Gerard Rutgers to be cancelled, and it was cancelled; and stating‘that the whole §12,000 mentioned in the Brown mortgage was unpaid. A decree pro. con. was taken. In July, 1842, leave was granted to the complainant in this suit to strike out the names of Brown and his wife as defendants in this bill.
    A final decree was made in this suit for the sale of the land described in the Brown mortgage, to raise the money¡due thereon, to pay the complainant, Margaret Rutgers, the money due her"bn the bond given by Pomeroy to her, and directing that the residue of the proceeds should be paid into court. Under the execution issued on this decree, the sheriff, on the 20th of Dec., 1842, struck off the said premises to the complainant, • Margaret Rutgers, for $1000. No deed was made.
    On the 18th of Jan’y, 1843, the sheriff, under the said executions in favor of Jos. Kingsland and William Mix against Chas. Mix, sold all the right title and interest of Chas. Mix in the said lands to Jos. Kingsland, for $500; and thereupon the sheriff made a deed to said Kingsland of all and singular the said lots of land’and premises, in as ample a manner as by virtue of the said executions he could convey the same.
    On the 3d of Feb., 1843, Margaret Rutgers filed a supplemental bill, stating among other things, thát Brown, in making the said mortgage to Pomeroy, (assigned to her), intended to embrace in it the dwelling-house, curtilage and appendages and other adjoining lands. That before and at the execution and delivery of the said Brown mortgage it was expressly understood and agreed that it should embrace the said dwelling-house, &e., and that it was executed and delivered by Brown and wife, and received by Pomeroy upon such intention, agreement and understanding. The bill then states what it claims to be the boundaries intended in this mortgage; and states that directions were given to the scrivener who drew the mortgage which would have embraced the said dwelling-house, &c. It states what it claims tobe the mistake to be the omission of a certain course and distance; and that the said mortgage was executed, delivered and received under the mistaken idea and impression that the description therein given contained the course and distance so omitted. It states that by the extension of a certain line about two chains the next course and distance would embrace the dwelling-house, &c., so intended to be embraced. That the complainant, the said Margaret, accepted the said bond of Pomeroy and the assignment of the said Brown mortgage upon the representation of the said Brown and Pomeroy, and in the full belief and expectation that the said mortgage embraced the land and premises as so intended to be embraced ; and that she would not otherwise have accepted the same, or delivered up to be cancelled the said bond and mortgage to Gerard Rutgers. That Brown made and delivered the said bond and mortgage to Pomeroy with the full knowledge and consent of the said Chas. Mix and others for whom Brown held the said lands in trust; and that the said Chas. Mix knew, when the said bond and mortgage were given to Pomeroy, that it was intended, agreed and understood by and between Brown and wife and Pomeroy that the said mortgage should embrace the said lands and premises so including the said dwelling-house, &c. This bill then states the said bill filed by Brown in 1880, to which the said Mix ivas a defendant; that the said bill stated that the said mortgage embraced the said dwelling-house and its appurtenances ; and that the said Charles Mix well knew it so alleged, it states the decree in that suit, and the execution issued thereon, and the sale to the said Charles Mix. That Charles Mix, when he bought at that sale, know that the said decree and execution recognized and stated that the mortgage to Pomeroy was a lion on the said dwelling-house and appurtenances ; and that Mix has often declared that it did so.
    This bill then states the judgments and executions of Jos. Kingsland and William Mix against Chas. Mix, under which levies were made on the said land and premises so conveyed as aforesaid to Chas. Mix, (except such parts thereof as the said Chas. Mix had sold and conveyed before the recovery of the said judgments,) subject to the lien of the Brown mortgage; and the sale of the said lands, except as aforesaid, to Jos. Kingsland; and that the land embraced, or intended to be embraced in the said Brown mortgage, was included in the land so sold to Kings-land.
    It states that Kingsland and William Mix well knew, had heard, and had reason to believe, when their said judgments' were entered and their executions issued, and when the said lands were advertised and struck off, and before the deed to Kingsland was delivered, that the said Brown mortgage embraced, and that it was intended, agreed and understood to embrace the said dwelling-house, &c.
    That this complainant, (Margaret Rutgers), was informed of the mistake in the said Brown mortgage, for the first time, after the said land and premises had been struck off to her under the said execution in her behalf issued out of this court; and that neither she nor Pomeroy, Brown and wife, Kingsland, Charles or Wm. Mix, or any other person, to the knowledge of the complainant, had any idea or impression that any such mistake as assigned had been made in the said Brown mortgage; or that the said dwelling-house, &c. were excluded or excepted from the lien thereof, until the decree of this court in favor of this complainant and the advertisement under the execution issued thereon.
    That, immediately after the said mortgaged premises were so struck off to the complainant, she was informed that the said Chas, and Wm'. Mix and J. Kingsland set up and pretend that the said mortgage does not embrace the said dwelling-house, &c.
    The bill prays that the lands and premises so intended, agreed and understood to be embraced in the said Brown mortgage may be sold for the payment of such sum as may be due her the said Margaret, and for foreclosure, &c.; and that the decree and execution already made in this suit, and the sale thereunder, may be set aside and for nothing holden, or that such further decree as &c. may be made, instead of the decree already made; and particularly that this court may, by its decree, ascertain, determine and define the land and premises so intended, agreed and understood to be embraced in the said Brown mortgage ; and that the mistake before set forth may be corrected, and for further relief.
    Jos. Kingsland put in his answer to the bill.
    He therein says that he has been informed and believes, that an execution issued on the decree on the original bill of the complainant and that the sheriff advertised the said mortgaged premises for sale, and on or about Nov. 28, 1842, the said premises were struck off by the sheriff to the complainant, for §1000, she being by her agent the highest bidder.

      That he is informed and believes and expects to he able to prove that the said agent of the complainant know or was informed, before the said sale, that the said dwelling-house, &c. were not included in the said mortgage.
    He denies that when his judgment was entered against Charles Mix, or when execution was issued thereon, he know, or had been informed, that the said mortgage assigned to the complainant embraced or was intended, agreed or understood to embrace the said dwelling-house, &c.; nor had he any information that such a elaim was made or intended to he made until the day of sale by the sheriff, when he made his purchase as aforesaid, and after the premises were struck off to him. That he does not know or believe that the said Wm. Mix, who is the partner of the said Chas. Mix, prior to the said purchase by this defendant, had any knowledge or notice that the said dwelling-house, &c. were intended or agreed or understood to he embraced in the said mortgage.
    That he is advised and insists, that ho is well entitled to have and claim as against the complainant the said dwelling-house, &c., and all the interest and estate of the said Chas. Mix, not included in the premises described in the said mortgage, which were purchased by him at the said sheriff’s sale, and to hold the same by virtue of his said purchase and deed. And ho insists that the said dwelling-house, &c. claimed by the complainant are not included within the premises described in the said mortgage, and that the said mortgage is no lien thereon, and also that the said house and adjoining lands are free and clear from all the mortgages in the said supplemental hill mentioned to he held by Gerard Rutgers at the time of his death, they having been cancelled of record, at or about the time the said Brown mortgage was given to Pomeroy ; and ought not now to be set up to injure and defraud this defendant as against him, because he had no knowledge or notice prior to his said purchase and sheriff’s deed of any pretended or alleged mistake hi the said mortgages.
    The cause was heard on, the pleadings and evidence.
    •#. C. M. Pennington and W. Pennington for the complainant.
    They cited 1 Story’s Eq. Jur., sec. 165, 411, note, 416; 2 Ib. page 1502; 2 Fonbl. Eq., 414, 417.

      R. Van Arsdale and A. Whitehead for the defendants,
    cited 1 Story’s Eq. sec. 144, 146, 152; 1 Ves. Sen., 318; 8 Bingham, 244; 21 Eng. C. L. 288; 1 Fonbl. Eq., Ch. 3, sec. 3; Sugd. on Vend., 42;. Elm. Dig., 87, sec. 40; 4 Halst. Rep., 193; Halst. Dig., 627; 1 Story’s Eq., sec. 403, 409, 410; 10 Wend., 180; Greenl. Ev., 315; 10 Mass. Rep., 244; 1 Ib., 68; 3 Wils., 276; 12 John. Rep., 427; 1 Caines Rep., 358; 1 Ves. Jun., 141; 2 Bro. Ch., 219; 4 Ib., 514; 7 Ves., 217; 1 John. Ch., 279, 425; 3 Paige’s, 94; 1 Ves. and Beam., 378.
   The Chancellor.

If a mortgage is by mistake, as between a mortgagor and mortgagee, so drawn as to exclude lands which they intended it should include, and the mortgage is recorded as drawn, and the lands not included in it are sold to a bona fide purchaser without notice of the mistake; or lands, as well those included as those not included in the mortgage but intended to be, are sold together with other lands not intended to be included in the mortgage, subject to such mortgage on a part of them, to a bona fide purchaser without notice, the court could not, I thinly as against such a purchaser, correct such a mistake.

A subsequent purchaser from such bona fide purchaser without notice would hold the lands not included in the mortgage free from the mortgage, although such subsequent purchaser knew of the mistake; because, by purchasing from him who bought in good faith without notice, he would acquire all his rights and equities.

A subsequent purchaser bona fide and without notice from a first purchaser who had notice of the mistake would hold the lands not included in the mortgage free from the mortgage ; because his equity Would be at least equal to that of the mortgagee.

To apply these principles: if Charles Mix had no notice of the mistake when he bought under the decree of Brown againsMix and others, the complainant cannot succeed in any event. Had he such notice 1 It is contended that as he was one of the associates for whom Brown, the mortgagor, acted as trustee and as president of the association, he is, therefore, chargeable with the same knowledge Brown had that certain other land was intended to be covered by tbe mortgage. I have strong doubts whether this position can be maintained. Actual notice is the notice required. I do not see that Ms being one of a number of associates interested in the property is sufficient to charge him with actual notice that certain other land was intended to be included in a mortgage given by the trustee who held the title for the associates. The property was advertised to be sold, at public sale, under a decree of this court. The mortgage was on record. It was a sale at which any person might buy, and at which the property might be sold free from any objection or influence growing out of a mistake as to the quantity included in the mortgage ; for no moans were taken to apprise the public, at that sale or before, of any mistake in the mortgage. Clearly, if, under such circumstances, property be sold to a person having no knowledge of the alleged mistake in the mortgage, he would hold free from the mortgage. If the case is to turn on the ground that the purchaser at that public sale was Charles Mix, one of the associates, and on the ground of his having notice, the proof of such notice should be full and unequivocal. Now the most that can bo said as to notice by him is, that he supposed that the mortgage covered the additional land claimed under it; for, knowledge of what is said to be the mistake in the mortgage was not, it seems, discovered by any body till long after this public sale at which Chas. Mix bought the property.

But the mortgage was recorded. Mix, as well as all others who thought of purchasing at the sheriff’s sale, must be supposed to have examined the record, to see what the mortgage covered. The mortgage had been given two and a half years before. No mistake in it had been set up by the mortgagee. And Mix was at liberty to suppose that the mortgagee know what the mortgage covered. Certainly, in reference to all bidders not connected with the transaction and having no actual notice, the property was to be sold subject only to the mortgage as it appeared on record.

And if Mix, before examining the records, supposed that the mortgage covered the dwelling-house, yet, when the record informed him it did not, his former supposition would not charge him with a notice of a mistake in the mortgage; nor with notice or knowledge that the omission of the dwelling-house in the mortgage was made under such circumstances as would call for a reform of the mortgage as against a purchaser at that sale.

If the case made by the proofs and the principles applying to it could carry us beyond this, the next question would be, whether notice to Kingsland was necessary, and if so, at what time notice to him was necessary. He bought the property at sheriff’s sale on executions against Charles Mix.

It was contended, that it was not necessary that Kingsland should have notice, he being only a judgment creditor in one of the judgments under which the land was sold to him at that sale; and that, if notice to him was at all necessary, notice at any time before the property was conveyed to him by the sheriff was sufficient.

This involves the construction of Sec. 6 of the u Act to Register Mortgages,” Rev. Stat. 658, which provides, that every mortgage shall be void against a subsequent judgment creditor or bona fide purchaser or mortgagee for a valuable consideration not having notice thereof, unless such mortgage shall be acknowledged or proved according to law, and recorded or lodged for that purpose at or before the time of entering such judgment, or lodging for record the deed or mortgage to such subsequent purchaser or mortgagee.

If the notice contemplated by this Sec. must be prior to the entry of the judgment, and this, it appears to me must be the true construction of the act, 4 Halsted’s Reports, 193, the complainant could not succeed, if all other difficulties were removed, unless he could show that Kingsland had notice of the alleged mistake in this mortgage prior to the entry of his judgment.

A case of the character of the one now before the court was not, probably, in the contemplation of the Legislature. The leading object of the act, no doubt, was to provide that a judgment entered should be prior in lien to a mortgage before given? unless the mortgage was recorded prior to the entry of the judgment, or unless the judgment creditor had- notice of the mortgage.

In this case there was a mortgage recorded before the entry of the judgment. The question is not, whether the mortgage, as recorded, is good against the judgment; there is no doubt about that; hut whether the judgment is not good against any subsequent incorporation into that mortgage of additional land, covered by the judgment, which, as between the parties to the mortgage, might be deemed to he bound by it on the ground that such additional land was intended by the parties to the mortgage to he included in it.

The question is : after a judgment entered, can a recorded mortgage he declared, as against the judgment creditor, to cover more land than the recorded mortgage covers, on the ground that as between mortgagor and mortgagee it was intended and supposed to cover more.

It seem to me that to answer this question in the affirmative would be to allow too great indulgence to the negligence of parties. As to third persons acquiring subsequent liens on property, the record is their proper resort for information, and they must be permitted to rely on it with confidence. Halst. Dig. 687.

If a prior mortgage recorded does not, by mistake between the mortgagor and mortgagee, cover all the land it was intended to cover, it is the misfortune, to say the least, of the mortgagee ; and, as between him and third persons acquiring liens, it must be considered his negligence. No good general purpose would be subserved, and much mischief would result, from undertaking to reform such prior mortgages as against subsequent liens. If it could be reformed as against a subsequent judgment creditor, it could bo as against a subsequent mortgagee, for they both stand on the same ground.

There is nothing in the proofs, at all events nothing upon which the court can satisfactorily ground a decree for the complainant in a case of this character, to show that Kingsland had-any knowledge of any mistake in the mortgage at the time of the entry of his judgment. No such idea as a mistake in the mortgage had ever been suggested by any body at this time. We may conjecture that- Kingsland, from his relation to one or moré of these associates, and from conversations he would be likely to hear, may have supposed that the mortgage covered more land, but the record spoke differently.

If, then, the notice contemplated by the Sec. we have referred to must be before the entry of the judgment, the complainant must fail on this ground alone. And I do not see how the express language of the statute can be overcome. Any subsequent notice to him would not answer, for if the judgment is good against all lands not covered by the recorded mortgage, on the ground that the judgment creditors had no notice before the entry of the judgment, a sale under the judgment would'be good, though he had notice after the entry of the judgment.

If I could pass this point favorably to the complainant, there are other very serious difficulties in his way. The complainants’ counsel seem to have considered that it would not be safé for them to rely on any proof they could offer of notice to Kings-land before the entry of his judgment; or on the ground that a judgment creditor was not entitled to notice; or on the ground that a judgment creditor, purchasing property under his own judgment without notice is not to be considered a bona fide purchaser without notice. He caused a notice to be served on Kingsland after the property had been struck off to him at the sheriff’s sale under his judgment and that of Wm. Mix. A copy of the notice is in evidence. It was a notice that Margaret Rutgers held a Mortgage given- by Brown to Pomeroy, dated Sept, t, 1836, for $12,000, payable, &c., which was duly acknowledged and recorded, on which all the principal money was due, with interest from Jany. 7,1839, except $150 of the interest paid since that date ; and that the said mortgage embraces a part of the lands levied on under executions in favor of Wm. Mix and the said Jos. Kingsland; and that Margaret Rutgers claims to hold under the said mortgage, and to be entitled to a lien upon six acres or thereabouts of the lands so levied on, including the stone dwelling-house and its appurtenances thereon situated, that is to say upon all that piece or parcel of land, beginning, &c., and giving certain courses and distances, and extending the line, on the course S. 43 deg. West, two eliains and 72 links beyond the point where that line stops in the mortgage, (the distance given in the mortgage, on that course being but five chains, an extension of this line two chains and 72 links would be necessary to obtain the object sought by the bill ;) and that the said Margaret, is about to proceed in the Court of Chancery for the enforcing of such lien. This is simply a notice, that by a certain mortgage on record, Margaret llutgers claimed these boundaries. The record showed that the boundaries given in the mortgage were different. Which was K. to consider right; the boundaries claimed by the notice, or those given by the record ? And what was K. to understand by this notice? Was it that the mortgage was not truly recorded; that the boundaris given in the mortgage itself were the boundaries claimed? There is nothing said in this notice of the ground on which she claimed a lien according to the boundaries given in the notice. It is not said that she claims those boundaries because it was intended that the mortgage should give them, and that a mistake in the boundaries was made in drawing the mortgage. The notice is simply that under the mortgage she claims a lien according to the boundaries given in the notice. And it would be quite as natural for K., or any one else, to suppose that the meaning of the notice was, that the mortgage, right in itself, was wrongly recorded, as that the mortgage was wrong and did not include all the land intended to be mortgaged. It was certainly not notice of a mistake in drawing the mortgage. And if any purchaser chose, after such notice, to examine the records, and found that the record of the mortgage was different from the boundaries claimed by the notice, and to put himself on the ground that he would risk being bound further than the record went, though the mortgage itself might go further, his danger from what he supposed, and might under such a notice suppose to be the difficulty, that is to say, an incorrect record, differing from the mortgage, would be at an end when it appeared that the mortgage was the same as the record.

It appears to me that the notice, in a case like this, should have stated that the ground on which the boundaries set out in it were claimed was, that they were the boundaries intended to have been inserted in the mortgage, and that by mistake, the courses and distances were so run as to exclude a part of the land intended to be mortgaged. There is nothing in the nature of the notice given which would authorize Kingsland to refuse to take the deed from the sheriff.

Again, these lands were sold on the judgment in favor of Wm. Mix, for $2800, as. well as on the judgment of Jos. Kingsland; and no notice was served on Wm. Mix. If the sale, had it been made entirely under his judgment, would have been good against the alleged mistake in drawing the mortgage, it cannot be bad because it was sold at the same time under K.’s judgment also. If the sale would have been made on K.’s judgment alone, yet, K., by his purchase at a sheriff’s sale on both these executions, acquired the rights of a purchaser under the judgment of Wm. Mix.

I am of opinion, that the complainant can sell, by virtue of her mortgage, only the lands included within the boundaries therein given.

Decree accordingly.


text:
    Jonathan Lore and others v. John Getsinger and Joseph Getsinger, and others
    The statute entitled “An act respecting the Court of Chancery,” Rev. Stat. 921, providing that on the return “no goods” on an execution issued ou a judgment at law, a bill may be filed for the discovery of any property, thing in action, &c. belonging to the debtor, or held in trust for him, made no change as to the rights of creditors against the fraudulent conveyance of property that may he reached by execution* This class of cases stand as they did before the statute.
    Three creditors had obtained judgments in a Justices Court, against the same defend” ant, the judgments, with the costs thereon, amounting, together, to $103, and had issued executions thereon, which were all returned “ no goods.’7 Jieldf that they might unite as complainants in a bill to set aside a fraudulent transfer of personal property that might be reached by execution.
    The bill charged, also, that a certain conveyance by the defendant of real estate was fraudulent; and prayed that that, also, might be set aside. After the bill was filed, one of the creditors obtained a judgment against the defendant in a higher court, which was alien on lands, (the judgments in the Justices7 Court being no liens on lands.) An amendment of the bill to introduce the subsequent judgment was not permitted.
    Facts on which the transfer of personal estate was declared void as against creditors.
    On the 6th February, 184,6, John Getsinger and Joseph Get-singer, who were partners in the manufacture of glass, executed to George B. Cooper and Charles B. Townsend a bill of sale of all the personal property which the said Getsingers held in partnership ; and of all the furniture in each of their houses ; and all the hogs, cows, calves, hay, rye, corn and other grain belonging to thorn, respectively; and all the lumber, cut and in the log, on the landing or elsewhere, and all the glass manufactured or in progress of manufacturo, and J01 boxes of glass then in the possession of Francis Lee and J. P. Biekley, and all and every article, of every kind, belonging to them jointly or individually, for the consideration in the said bill of sale expressed of $1 ; the bill of sale containing a covenant that the said Getsingers were the lawful owners of the said goods.
    On the same day, the Getsingers, with their respective wives, executed to the said Cooper and Townsend a deed, in fee simple, for the consideration therein expressed of $1,250, for thirty-six tracts of land, describing them, including a tract of about ten acres on a part of which the glass factory buildings and the said houses of the Getsingers and other houses stood, and containing altogether about 3713 acres of land; which deed contained a covenant of warranty on the part of the grantors against them and their respective wives and all persons claiming under them or any of them ; and was duly recorded.
    • On the same day, Cooper and Townsend, by deeds executed by them, conveyed to the children of John Getsinger, naming them, in fee, the house and iot where John Getsinger lived, and to the children of Joseph Getsinger, naming them, in fee, the house and lot where Joseph Getsinger lived. These two deeds were not recorded.
    On the 19th February, 1846, Jonathan Lore recovered a judgment in a Justice’s Court against the Getsingers, for $11 09 of debt, and $1 74 costs ; on which a fi. fa. was issued, and returned March 13,1846, “ no goods.” Another execution from a'Justice’s Court, on a judgment entered Feb. 20,1846, in favor of John Wallis, against the Getsingers, for $42 38 debt and costs was also returned, March 13, 1846, ct no goods.” Another execution from a Justice’s Court, in favor of James Smallwood against the Getsingers, on a judgment entered Feb. 21, 1846, for $48 53 debt and costs, which judgment had been assigned to David Lore, was returned, March 13,1846, “ no goods.”
    On the 11th August, 1846, Lorenzo Ogden recovered a judgment in the Circuit Court of Cumberland, against the Getsingers, for $1,203 13, on which execution was issued, and returned cc no goods.” On the same day, Jonas Hess recovered a judgment in the said Circuit Court against the Getsingers, for $1429 19, on which an execution was issued and returned “ no goods.” And, on the 20th May, 1846, Jonathan Lore recovered a judgment, in the said Circuit Court, against the Getsingers, for $665 93, on which execution was issued, and returned i( no goods.”
    On the 16th of April, 1846, Jonathan Lore, John Wallis and David Lore filed their bill, for themselves as judgment creditors of the Getsingers, and for all other judgment creditors of the Getsingers who should come in, &c., stating the foregoing facts ; and stating, further, that at the time of the making of the said bill of sale, the said Getsingers were indebted to divers persons in large sums of money, and among others, to the said complainants ; and that the said bill of sale was without any valuable consideration bona fide paid ; and that the Getsingers have been permitted to retain the possession of the said property ever since the making of the said bill of sale : and charging that the same is fraudulent and void as against the complainants ; and stating, in reference to the deed for the lands, that there was a secret understanding that the grantees, C. and T., should re-convoy to the children of the Getsingers, respectively, the houses in which the said John and Joseph Getsinger, respectively, lived, and should pay to John Getsinger $800 a year, and to Joseph Get-singer $200 a year, as long as the glass works should be carried on.
    That C. and T. sent an express, the same night the deed to them was executed, to Bridgeton, a distance of 16 miles, and had the said deed deposited with the Clerk of the County, for record before daylight the next morning; that the said two deeds to the children have not, as the complainants are informed, yet been recorded ; that, although the said deed to C. and T. purports to have been made for the consideration of $1250 paid before the delivery thereof, yet the complainants are informed, he ■ lieve and charge, that no money whatever, or if any, a mere nominal sum, was paid. They charge that the said deed was made for the purpose and with the intent to delay, defeat, hinder and defraud the creditors of the Getsingers, and is therefore fraudulent and void as against the complainants and the creditors of the Getsingers, or either of them. That the said two deeds made by C. and T. to the children of the said Getsingers, respectively, were made without any valuable consideration therefor paid by the said children or either of them; and were made at the samo time with the said deed and hill of sale to C. and T.; and were a part of the same transaction, and part of apian devised by the said J. and J. Getsinger and C. and T. to put the property of the Getsingers, or a considerable portion thereof, beyond the reach of the creditors of the Getsingers, and to enable them to keep possession of the said houses and lots and of the furniture and other articles in the said houses, and to use, occupy and enjoy the same as if no such deed or bill of sale had been made. They charge, that the said two deeds made to the said children, respectively, were made with the intent and purpose to defraud, hinder and delay the creditors of the Getsingers, and are therefore fraudulent and void as against the complainants and all other creditors of the Getsingers.
    The bill then states what the complainants charge to bo the value of the real and personal property conveyed to C. and T., and the value of the two houses and lots conveyed to them by the children of the Getsingers ; charging the real estate to be worth $14,000, subject only to an incumbrance of $11,745 28 ; and the personal estate to be worth $5,000 or $6,000; and the two houses conveyed by C. and T. to the children to be worth $1,000 each. That, at the time of the said conveyances, the aggregate amount of the indebtedness of the Getsingers was. not less than $25,000; and that C. and T. knew, at the time, that the Get-singers were largely indebted, and more than they were able to pay.
    That the Getsingers are Germans, and but little acquainted with the English language ; very ignorant of our laws and of the proper mode of transacting legal business, and of the nature and effect of legal proceedings. And that the complainants are •informed and believe that the said Getsingers were hurried and constrained, by various unfounded representations held out to them by Cooper and Townsend, or one of them, to execute the said conveyances, without giving them time to consult their friends whom they desired to consult, or take the opinion of •counsel, or fully to understand the nature and effect of the conveyances they were required to sign. To show which, the complainants say, that John Getsinger asked Townsend to give him from Friday, the day on which the deeds bear date, until the Monday following, to consult his friend John G. Rosenbaum before he executed the said deeds; but that Townsend insisted that the deeds must be executed on the said Friday, and told the said Getsinger that if it was not done that day the Sheriff would sell their property the next day, though the Sheriff had not advertised the property, and Townsend well knew the Sheriff could not sell the next day. That the complainants are informed and believe that Townsend gave as another reason to the Get-singers why he could not delay the business until Monday, that he had four lawyers on expense, and could not wait; and that, notwithstanding the said John Getsinger was advised by his friend James Ward not to enter into any writings until he got legal advice as to the effect thereof, and that there was no necessity of hastening the sale, and notwithstanding the said Ward carried to the Getsingers a proposition from Joshua Brick and others that, if the Getsingers would make an assignment of their property for the benefit of all the creditors, the creditors would make to them a deed for the houses in which they lived, yet the Getsingers declined the proposition.
    The hill then introduces statements that the complainants have reason to believe, and do believe, that the Getsingers have equitable interests, things in action, &c. of the value of $100 and more, which they have been unable to discover and reach by executions on their judgments; and seeks a disclosure from the Getsingers.
    The hill prays a receiver, and that the Getsingers may be enjoined from collecting, receiving, selling or transferring any of their debts, goods, account books, notes, &c. &c.; and from con» fessing any judgment for tbe purpose of giving any creditor a preference over the complainants ; and that the said bill of sale and deed to Cooper and Townsend may bo declared void ; and also the two deeds from Cooper and T. to the children of the Getsingers, and that C. and T. may he injoined from selling, taking away, or disposing of any of the personal property mentioned in the hill of sale.
    It appears that, at the date of the said deeds and bill of sale, the real estate w'as subject to a mortgage, dated August 1(5, 1845, given to Joshua Brick, Tlios. Lee, Frances Loo and T. B. Bicklcy, to secure $11,755 28 in six and twelve months, with interest ; and that, at the same time an execution existed, which had been levied in November before on the personal property of the Getsingers at the time of the levy, issued on a judgment for $2,400, obtained by Lee and Bickley against the Getsingers, which, it was admitted in the argument, was for a part of the money secured by the mortgage ; and that there were, at the same time, several executions in the hands of constables, which had been levied on personal property of the Getsingers, amounting in all to about $224.
    The Getsingers and Cooper and Townsend put in their joint and several answer.
    They admit the judgments, executions and returns thereon stated in the bill. They say that the bill of sale was made for a valuable consideration bona fide paid and agreed to be paid by C. and T. to the Getsingers; that the articles therein mentioned, except 101 boxes of glass in the possession of Lee and Bickley, were, at the execution of the bill of sale, delivered to C. and T.; and that the same, except some articles of household furniture of the Getsingers, of but small value, have ever since remained in the possession of C. and T., or have been consumed by them in the progress of their business ; and they deny that the said bill of sale was made with any view to injure, delay or defraud creditors, or that the complainants have in any way been injured therebyand they submit that the same was a valid, fair and bona fide transaction.
    They admit the deed from the Getsingers to C. and T. They say that the bill of sale and deed were made at the same time, and were one and the same transaction, and wore made by the Getsingers and their wives, to convey to C. and T. their interest in certain glass works and tracts of land appurtenant thereto, and certain personal property principally connected therewith, in pursuance of a contract made by the said parties, fairly and deliberately, for a fair and bona fide consideration equal to the full value thereof, as it was then situated, and in the fair and ordinary transaction of business; with no view to defeat, delay or injure the complainants or any other creditor of the Getsingers.
    They say, that the true consideration paid and agreed to be paid for the said real and personal property was the following : the execution (before stated) in favor of Lee and Bickley, and which they paid on the 12th of February, 1846, amounting to $2,512 18; that they also agreed to pay, for and on behalf of the Getsingers, at their request, $500 bona Jide due from them to one Joseph Schmouse, $250 bona Jide due from them to Lorenzo Ogden, $150 bona Jide due from them to Richard Mitchell, and $100 bona Jide due from them to Charles Bank, and several sums upon executions in the hands of constables, previously levied on the said personal property, supposed to amount to $250, and which afterwards proved to be $224 ; all which sums the said C. and T. have fully paid and satisfied; thatthe real estate was subject to a mortgage (being tlie mortgage before mentioned) for $11,755 23, which money, or such part thereof as was justly due, the said C. and T. agreed and expected to pay.
    That the wives of the Getsingers had not signed the said mortgage, and were entitled to a prospective right of dower, and were unwilling to join in executing the said deed without some reasonable equivalent; and it was therefore agreed that, in consideration of their joining in tho said conveyance, and as some compensation to them for their right of dower, tho two houses mentioned in the bill should be conveyed to such persons as tlie wives should designate and request ; and at their request the same were accordingly conveyed to the children of each.
    They deny that the said houses were worth anything like $1200 each; but believe that $1200 would he a good price for tlie two. They say that the said houses were no more than a reasonable consideration to the wives for joining in tho conveyance : that the other property conveyed by them to C. and T., sold by deed conveying all the right of tho wives, would bring considerably more, either at public or private sale, and was actually worth more than the whole property, including the said houses, would bo worth or bring if conveyed by the husbands alone. And tho defendants C. and T. state, that they would not have given for the whole property, including the two houses, what they have given and agreed to give, if tho wives had refused to join in the conveyance.
    They say that the said deeds wore not, nor was either of them, made for tho purpose and with tlie intent to delay, hinder or defraud the creditors of the Getsingers, or cither of them; hut that they were made in pursuance of a fair and bona fide contract, and for a good and adequate consideration; and they in-gist that the same are valid; and they deny that there was any intention or desire to put the property of the Getsingers, or any part thereof, heyond the reach of their creditors, or that there was any plan or intention so to do.
    The defendants C. and T.for themselves say, it is true they sent up the deed to be recorded in the night, exercising in so doing, as they believe, only a reasonable precaution against any attempt they had reason to believe might be made by designing persons to injure and defraud them ; and, as they submit, thereby doing nothing illegal, improper or suspicious; and they also caused the said bill of sale to be put on record, being willing that all their acts in the matter should be public.
    The defendants deny that the real estate was worth $1400, and deny that the personal property included in the bill of sale was worth $5,000; nor do they believe that it was worth more than was given for it by C. and T. They say that the personal property was valued, previous to the sale, by persons appointed' by the Sheriff, one of whom was a creditor of the Getsingers, at about $1500, including what is contained in the bill of sale, except some articles amounting in value to about $150, and except the 701 boxes of glass in the possession of Lee and Bickley,. which are claimed by them, or by them and Joshua Brick and Thomas Lee, and have not come to the possession of C. and T., or to any one for their use, being of the value of about $1028.
    That at the time of the said sale it was, and is still the belief of the defendants, that the real estate would not bring, at a public sale, more than the incumbrances on it; and had the works gone out of blast, there is every reason to believe that the said real estate would not pay the incumbrances. That property of that description is very precarious and uncertain in its value, and" would be greatly depreciated by ceasing to be worked for any considerable time; and, as these defendants then believed and still believe, would be greatly lessened in value by any material reduction of the rates of duties levied by the U. S. on glass ; the great probability of which reduction the defendants were well aware of when the said sale was made.
    They deny that there was any understanding at the time of or previous to said conveyances and bill of sale, and as any part of the consideration for making the same, that C. and T. should pay John Getsinger $300 a year, and Joseph Getsinger $200 a year as long as the glass works should he carried on.
    These defendants C. and T. purchased the said property with the hona fide view of carrying on the said glass works for their own advantage and profit; and since said purchase have so carried them on, and expect to do so. There is not now, nor has there ever been, since tbe making of the said conveyance, any agreement or understanding, express or implied, that the Get-singers, or either of them, or any other person for thoir uso and benefit, shall have any share of the profits, or any interest in the said property, or any right to the same in any contingency, except their right under the lease hereafter mentioned.
    C. and T., who are not practical glass blowers, needing the services of the Getsingers, did agree with John Getsinger to pay him $300 a year, in quarterly 'payments, for his services as superintendent of the glass factory, at which rate they have paid him since their said purchase; and to pay Jos. Getsinger $200 a year, quarterly, for his services as master blower and pot maker, at which rate they have paid him since their said purchase; and they also made a lease to the sons of John and Jos. G. for two lots of meadow, at the annual value of not exceeding $50, for the use of tho said John and Joseph, the proceeds of which they receive, in addition to the sum aforesaid; and which said sums and tho proceeds of said meadow arc no moro than a reasonable consideration for the services actually rendered by the Getsingers to C. and T., and no more than are usually paid for similar services.
    The defendants admit that, at the time of making said hill of sale and conveyance tho Getsingers were largely indebted ; and, although C. and T. had no particular knowledge of tho said debts, they were informed that such was the case ; and the fact also, was, as the defendants all believe, that the affairs of the Getsingers were so situated that there was no reasonable prospect of their being able to pay anything more than the incumbrances then on the property, had they not succeeded in effecting a salo to persons able and willing to carry them on. Had the whole personal property levied on been sold under the executions and dispersed, or had the Getsingers made an assignment, the works must have stopped j and in either case the property-must have greatly depreciated, to the injury of the creditors. These defendants believed at the time the sale was made, and still believe, that the sale, for the price obtained and actually paid to the creditors of the Getsingers, was the best arrangement that could be made for the benefit of all concerned.
    The defendants say it is true that the Getsingers are Germans and but little acquainted with the English language, and are not well acquainted with the laws of the country; but the defendants the Getsingers declare that, before executing the conveyance and bill of sale, they, made themselves fully acquainted with the nature and effect thereof, and were at the time, and still are, entirely satisfied that they did what was best for themselves and best for their creditors.
    The defendants say that the proposition to purchase the said works was first made by the Getsingers to C. and T., and that negotiation respecting the purchase was in progress a full week; and the Getsingers deliberated on the subject and consulted with their friends during that period until fully satisfied. The defendants deny that unfounded representations were made by C. and T., or either of them, to the Getsingers, or either of them, to induce them to execute the said conveyances. They say that the terms of the contract had been agreed upon on Friday, and C. and T. were desirous and urged that the business should be completed that day, if at all; and C. and T. say they were induced so to do because ample time had been spent in arranging the business, and further delay would occasion them additional expense and inconvenience, and because they were informed and believed and still believe that J. Brick, Thos. and F. Lee and Bickley were using all the means in their power to embarrass them and to break up the business of the glass works, and bring the Getsingers wholly under their power and control.
    The defendants say they believe, and therefore state, that the complainants’ bill was filed at the instigation of and in concert with said Brick, Lees and Bickley, who contribute, as the defendants are informed and believe, to the expenses of this suit, and are really parties thereto; and they believe, and therefore state, that the whole difficulty has been produced by their interference and to serve their private purposes. The Getsingers depended much on them, for many years, for advice and aid ; but it having come to the knowledge of the said Brick, Lees and Bickley that their business had not prospered, and that the Get-singers had met with very heavy losses, by fire and otherwise, Brick, and Bickley his son-in-law, and the said Thos. Lee, and Francis Lee his son, who had previously been much at variance and for a long time not in the habit of transacting business together, reconciled their difficulties, and, as the defendants believe and state, concocted together and unjustly and unlawfully combined to get the said glass works into their own hands, or to get the management of the business ; and joined together, in pursuance of said design, to obtain from the Getsingers the said mortgage and judgment, and then suddenly refused to give them any further credit, or afford them any aid; but caused their executions to be levied, and were proceeding to enforce a sale ; and when they found that their said design was likely to be defeated, and that the Getsingers were in a fair way to sell the works to C. and T., they combined with the complainants to embarrass and throw all the difficulties in the way of the defendants in their power.
    The Getsingers say, that John Getsinger owns some land in Atlantic county, which is mortgaged to a creditor of the said Getsingers for its full value; and they say they have annexed to the answer a list of all their property, and debts due them which have been contracted within any reasonable time, and which are of any value, setting forth what they consider may perhaps be collected, and which they suppose are doubtful or desperate ; and they say that, except what is contained in the said list, and except their earnings since the making of said conveyances, which they have from time to time expended in the support of themselves and their families, and except the lease before mentioned, they, or either of them, had not, at the time of the rendition of the judgment in the bill mentioned, possessed, owned or had, and do not now possess, own or have any property of any kind.
    The Getsingers say they have always been and still are desirous of paying all their debts, and have made every possible effort to do so, and have always intended to appropriate ev ery cent they could collect of the debts due them, and all their property to the payment of their debts ; and that they have never concealed the same; but are desirous now to collect what is due them, and pay the same to their creditors, and submit that they ought to be allowed to do so without further restraint or hindrance.
    The answer submits, that the complainants have not brought themselves, by the facts stated in their bill, within the provisions of the act entitled “ An act respecting the Court of Chancery,” and are not entitled to the benefit thereof ; and they hope they shall have the same benefit of this defense as if they had demurred.
    The case was heard on the pleadings and evidence.

      W. Halsted for the complainants.
    He cited Long on Sales, 69, 70, 72, 282, 3; 1 Halst. Rep. 155; 1 Cranch, 309; 3 Gilman’s Rep. 455, 463; Story on Sales, 437; 2 Kent’s Com. 531, 2; 9 John. Rep. 337; 2 Burr’s Rep. 328; 2 Wharton, 302; 6 Ib. 53; 3 Coke’s Rep. 80; 2 Scho & Lef. 492, 501; 2 Paige, 333; 3 Gilman, 523; 9 Paige, 595, 605; 5 Ib. 505; 1 Edw. 271, 451; Mitf. on Pl. 262; 12 Ves. 48; 8 Wend. 339; 4 John. Ch. 183; 5 Ib. 276; 1 Hopk. 112; 7 Day, 205, 496.

      L. Q. C. Elmer and P. D. Vroom for the defendants.
    They cited 2 Rev. Stat. of N. Y., 173, sec. 37; Rev. Stat. of N. J., 921, 2; Story’s Eq. Pl., sec. 332, 3, 885, 6, 7, 8; 1 Paige, 200; 1 Green’s Ch. 258; 4 John. Ch. 671; Clark’s Ch. Rep. 299; 7 Paige, 583, 350, 637; 2 Ib. 637; Story on Sales, 447 to 457; 7 Halst. Rep. 285; 2 South. Rep. 738; 4 Harr. Rep. 166; 4 Halst. Rep. 135; 5 Term. Rep. 235; 1 Saxt. Ch. 341; 9 Ves. 246; 1 Bro. Ch. 175.
   The Chancellor.

It is objected in the answer, and the objection has been urged in argument, that this is a creditor’s bill under our act entitled “An act respecting the Court of Chancery,” Rev. Stat. 921; and that, no execution of either of the complainants, nor all the executions of the several complainants together amount to $100, exclusive of costs ; and that therefore the bill cannot be sustained.

This act provides that whenever an execution issued on a judgment at law against the property of a defendant shall have been returned unsatisfied in whole or in part, leaving an amount or balance due exceeding $100 exclusive of costs, the party suing out such execution may file a hill in Chancery to compel the discovery of any property or thing in action belonging to the defendant in the judgment, and of any property, money, or thing in action, due to him or held in trust for him, except such property as is now reserved by law ; and to prevent the transfer of any such property, money, or thing in action, or the payment or delivery thereof to the defendant, except when such trust has been created by, or the fund so held in trust has proceeded from some person other than the debtor himself ; and that the court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining duo on such judgment out of any personal property, money, or things in action belonging to the defendant, or held in trust for him, (with the exception above stated,) which shall be discovered by the proceedings in Chancery ; but if the personal property, money or thing in action which shall be discovered as aforesaid shall not amount to $100, no costs shall be recovered against the defendant.

The English Courts, after much discussion, established the doctrine that, to malee a conveyance void as against creditors, it must he a conveyance of property which the creditor could take in execution; for that a conveyance of property not subject to execution cannot bo injurious to creditors, because it would not withdraw any fund from their power which the law had not already withdrawn from it, and a conveyance which in no respect varied the rights of creditors could not be a fraud upon creditors. Under this doctrine, a debtor might hold, or transfer to another for his use, any amount of stock, choses in action, or other property not subject to execution, in defiance of his creditors. 1 Story’s Eq., sec. 367.

Chancellor Kent has very strongly and ably combatted this doctrine, Ib., sec. 368, and note and authorities there cited.

The existence of such a doctrine in England, whether well founded or not, and the least apprehension that such a doctrine was maintainable here, certainly furnished sufficient ground for the adoption of our statute. And it is plain from its language, that it was intended to displace, in this State, the English doctrine above mentioned, and to put creditors on the ground on which Chancellor Kent contended they ought to stand without the aid of any statutory provision. It has made no change in the law as to the rights of creditors against fraudulent conveyances of property that may be reached by execution. This class of cases stand as they did before the statute. This objection, therefore, cannot prevail.

This bill is filed by three creditors who have obtained judgments in a Justice’s Court, on which executions have been issued, and returned c< no goods,” amounting, with the costs, to $103 74, for themselves and all other judgment creditors of the Getsingers who shall come in, &c., seeking to set aside a bill of sale transferring to Cooper and Townsend personal property of a tangible kind, on which an ex ecution at law might be levied,, and also to set aside a deed to C. and T. of real estate, on the ground alleged, that the said bill of sale and deed are fraudulent and void as against creditors.

Protection of the right of creditors to payment out of the property of their debtors, against the disposition of their property with a view to defeat that right, by declaring such disposition void as against the creditors, is too obvious a policy and duty not to have been recognized from the earliest periods. And so careful are the courts of the rights of creditors, that the debtor cannot by transfer or conveyance put his property beyond their reach, unless such transfer or conveyance is made both upon good consideration and bona fide ; and even if the transfer or conveyance be made for a valuable and adequate consideration, yet, if it be made with intent to defraud creditors, it is void as against them. The indicia of fraud, the circumstances from which the presumption of an intention to defeat creditors will arise, must of course be clear and strong where a valuable and adequate consideration is paid.

Courts of equity afford their aid in relieving the creditor from frauds of this kind j and transactions the fraudulent character of which might not be reached or declared by courts of law are often exposed by the nature of the proceedings in courts of equity. Of this jurisdiction of courts of equity there can, at this day, heno doubt. The duty of the courts of New Jersey of exercising to the fullest extent, and with a scrupulous regard for the rights of creditors, their jurisdiction over this subject, is rendered more imperative by the recent legislation in this State exempting the person of the debtor from imprisonment for debt.

The complainants who filed this bill were creditors on judgments obtained before a Justice of the Peace. Their judgments are no liens on real estate. They issued executions against the personal estate of the defendants the Getsingers, which were returned “ no goods.” They are in position, then, to ask the aid of this court against a transfer of personal property of the Getsingers of a nature to be subject to execution, if such transfer is framlulent and void as against them, unless the fact of their judgments being less than $100 each, or the fact that their three judgments together amount only to $108, including costs, prevents; or unless such judgment creditors cannot unite in filing a bill and the amount of either of the judgments is insufficient to justify the interposition of this court.

Without saying what amount of judgment and execution before a magistrate should be sufficient to invoke the aid of this court, I am of opinion that such creditors may unite, and that the amount of these three judgments together is sufficient to call for the exercise of the jurisdiction of this court, in reference to personal property of a nature to be subject to levy on execution, in the protection of their rights against a fraudulent transfer thereof. 8 Wend. 339.

The answer in this cause was filed Sept. 14, 1846. The replication was filed Nov. 8, 1846. On the 12th of May, 1846, Jonathan Lore, one of the complainants, recovered another judgment against the Getsingers, in the Circuit Court of Cumberland county, for $665 93, on which a fi. fa. was issued ; and the fi. fa. was returned “ no goods,” on the second Tuesday of August, 1846. An alias fi. fa. was subsequently issued on this judgment, tested the second Tuesday of August, 1846, returnable the second Tuesday of N ov., 1846, by virtue of which a levy was made on the 9th of October, 1846, on personal property of the Getsingers, consisting of household furniture, (mentioning the articles,) and hay and grain, “ together with all the moveable property in the possession of John Getsinger and Joseph Getsinger. The property levied upon under this alias fi. fa. was claimed by Cooper and Townsend, by notice in writing delivered to the Sheriff; and a jury was summoned, according to the provisions of the statute in that respect, to try the right of the claimants to the said property. The complainant in the said judgment did not indemnify the Sheriff against the demand of the claimants ; and the right of said claimants was tried by a jury, and the property levied upon was found by the jury to be in the claimants.

On the 11th of August, 1846, Jonas Hess recovered a judgment in the Circuit Court of Cumberland, against the Getsingers, for $1,429 19, on which an execution was issued, tested the second Tuesday of August, 1846, returnable the second Tuesday of November, 1846, by virtue of which the Sheriff levied on the same property levied on by virtue of the alias fi. fa. issued on the said judgment of Jonathan Lore, with the same general clause added; and Cooper and Townsend having put in a claim to the property, the claim was tried before a jury, and the property levied on was found to be in the claimants. The claim was tried on the 31st of October, 1846; Hess omitting to indemnify the Sheriff.

On the 11th of August, 1847, Lorenzo Ogden recovered a judgment in the Circuit Court of Cumberland, against the Get-singers, for $1,203 13, on which a fi. fa. recorded October 29, 1846, was issued, returnable the second Tuesday of November, 1846, which was returned “no goods nor lands.”

On the 23d of June, 1846, an order was taken on the part of the complainants, that the complainants be at liberty to amend their bill, by making Lorenzo Ogden and Jonathan Hess parties complainants, and by setting forth their respective judgments, executions and returns ; and further to amend the bill by setting out the judgment recovered by the complainant Jonathan Lore since the filing of the bill, and the execution issued thereon returnable to the August term, 1846, and the return thereof “ no goods.” It was agreed on the argument of the cause, that this order should be considered as having been subject to the decision of the court as to the propriety thereof.

When the bill was filed, no one of the complainants had any lien on the real estate, their judgments being obtained before Justices of the Peace. When the bill was filed, therefore, the case made by it was not such as to give the court any ground on which to entertain the cause so far as it sought to affect real estate. w The bill could not properly pray any action of the court in reference to the real estate, or any relief in respect thereof. Such a bill cannot become the basis of a proceeding in reference to real estate on the ground that judgments were subsequently recovered which were liens on the real estate, and by permitting an amendment of the bill introducing the subsequent judgments affecting real estate.

It will not bo necessary, therefore, and not proper, perhaps, to say anything as to the deed for the real estate from the Getsingers to C. and T., or the character of it as fraudulent or otherwise.

As to the bill of sale of the personal estate, I am of opinion that it' cannot be sustained as against creditors.

From the evidence as to the value of the real property, and the fact that it was mortgaged, the wives not joining in the mortgages, for within $1250 of the consideration named in the deed, and within $1,000 of what one of the papers says was to be actually paid, it appears to me that the real estate, if, in view of other circumstances which I will not now mention, the deed therefor can be sustained, was very amply worth all the defendants have agreed to pay to or for the Getsingers.

The consideration for the whole personal property nominal in the bill of sale, was, I think, nominal in fact. The considerations, growing out of the testimony, leading to the conclusion that this bill of sale ought not to be supported as against creditors are too numerous to be stated at length. The court, in my judgment, cannot sustain such a transaction without an utter disregard of the right of creditors.

The consideration for the deed for the real estate expressed in the deed is $1250. This is to be considered as the consideration subject to the mortgage. By a writing under the hands and seals of C. and T., bearing even date with the deed, thus, “ for and in consideration of certain real estate this day conveyed to us” (them) by the Getsingers and their wives, “ do hereby promise, covenant and agree” to and with the Getsingers, “ to pay Joseph Schmouse - $500

Three notes in the Cumberland Bank, one in favor of Lorenzo Ogden, to fall due March 1, 1846, for - 250

One in favor of Richard Mitchell, to fall due April 8, 1846, for - - - - - ' * 150

And one in favor of Jonas Hess, to fall due April 10, 1846, for ..... 100

$1,000

On the same day the Getsingers give a receipt to C. and T., by which they say they have received of them $1,000, viz: (their assumptions to pay the above mentioned claims, setting, them out,) in full consideration of the deed of same date made by them to C. and T. of certain real estate. This paper then states that they have received the further sum of $1, in full for-the consideration of certain personal property specified in a bill’ of sale of that date made by said Getsingers to C. and T.

Then another writing under the hands and seals of C. and T. appears, purporting to be signed the same day, as follows :

“LIABILITIES OF THE MESSRS. GETSINGER.

The bond and mortgage to Brick, the Lees and Bickley, - - - ,755 28

Interest thereon, - - - 420 00

Lee and Bickley’s judgment and execution, Interest and Sheriff’s costs, 2,433 43

Constable’s executions, about $250

Schmouse’s claim, 500

Three notes in Bank, (being the notes specified in the two preceding writings,) 500 1,250 00

(These three last items amounting to $1250, the consideration expressed in the deed for the real estate.) Footed $15,858 66

Then follows : “ In consideration of certain real estate conveyed to us (by the Getsingers and wives) by deed bearing even date herewith, and in consideration of a bill of sale of certain personal property of like date, we promise and agree to pay off the above claims, or so much thereof as shall be honestly due and owing thereon; we believe said judgment and execution to be covered by the mortgage; and to indemnify and protect the said Getsingers and their property from any and every suit, claim and demand whatsoever founded on any of the claims above set forth.”

It proves that the belief of C. and T. that the said judgment was for a part of the debt secured by the mortgage was correct.

When the judgment was paid, therefore, it paid so much of the debt secured by the mortgage on the real estate which they bought subject to the mortgage. It can form, then, no part of the consideration for the personal property.

Schmouse’s claim and the three notes in Bank are expressly stated in the assumption of G. and T., and in the receipt of the Getsingers, to be in consideration of the real estate ; and therefore can be no consideration for the personal estate.

There is nothing left, then, for a consideration for the bill of sale but the constable’s executions, supposed to be $250 ; they proved to be $224; and the consideration called for in the deed of the real estate is large enough to pay these in addition to Schmouse’s claim and the three notes, it being $1250 ; and the bill of sale is actually made for the consideration expressed of one dollar.

The transfer of the personal estate cannot be permitted to stand on the idea of its being a consideration for which C. and T. convoyed a part of the real estate to the children of the Get-singers to induce the wives of the Getsingers to sign the deed for the real estate. Perhaps it might be permitted to C. and T. to make a reasonable compensation to the wives to induce them to sign the deed; but certainly the husbands could not be permitted to give C. and T. all their personal estate as a consideration for C. and T.’s conveying to the children a part of the real estate to induce the wives to sign the deed for the real estate.

In reference to the personal estate, the most they can in any shape be considered as having given for it is $224. I am unwilling to give the sanction of this court to a transaction so novel and extraordinary, so suspicious in its character, and of such dangerous tendency as a precedent, as the transaction in reference to the personal property in this case.

It is unnecessary to inquire as to the effect of the verdicts of the juries before stated, inasmuch as there is sufficient of other personal property to satisfy the judgments existing at the time of filing the bill and the executions thereon issued and levied.

The bill of sale of the personal property will be declared void as against the complainants.

Decree accordingly.