text:
    Archer Gifford, Adm’r &c. of Elizabeth Hait, v. Herman Thorn.
    The issuing of a subpoena against a non-resident and taking an order for his appearance and publishing the order will not give the court jurisdiction, either over his person,- or over the subject matter of the bill, if, from the nature of the case, the court has no jurisdiction over either.
    If the case be such that the court cannot give relief for want of jurisdiction over either the person or the subject matter, the jurisdiction may be objected to in any stage of the proceedings; indeed, the court would take judicial notice of it; it would not make a decree which it had no power to enforce. It is otherwise where the objection to the jurisdiction is that there is a perfect remedy at law; such objection must betaken by demurrer or insisted on in the answer.
    On a bill filed by the administrator of E. H., deceased, against H. T., a resident of New York, and the executor of J. R., deceased, who was, in his life time, executor of W. J., deceased, who lived and died in New York, and whose will was proved there, and whose estate was administered there; charging that H. T. came to the residence of E. H., in New Jersey, and fraudulently procured from her an assignment to him of her share of the estate of W. J., deceased, and that J. B., who lived and died in New Jersey, knew the circumstances under which that assignment was obtained, but, nevertheless, paid to II. T., in virtue of the said assignment., the share of E. H. in the said estate, and took a bond and mortgage from II. T. to save him harmless; and praying, that the said assignment may be ordered to he cancelled, and that H. T. and the executor of J. R. may he ordered to account, and to pay to the complainant the share of E. H. in the said estate; a subpoena was served on the executor of J. R. deceased; and a subpoena was issued directed to H. T., which was returned “ not found,” and the usual order for publication was made as to II. T. The-court refused to vacate this order.
    A bill was filed in the Court of Chancery of the State of New York, by some of the next of kin of Wm. Jauncey, deceased,, complainants, in July, 1831, against John Butherfurd, executor of the will of said decedent, Herman Thorn and James A. Hamilton, making Elizabeth Hait, one of the next of kin of said decedent, also, a defendant.
    Before any proofs were taken in that cause, an arrangement was made between the complainants in that suit and Herman Thorn, one of the defendants, by which the complainants, in consideration of $210,000, to be paid to them by Herman Thorn, agreed to assign, set oyer and release to him all their shares in the estate of the said Wm. Jauncey, deceased.
    Pending the negotiation which resulted in that arrangement, and sometime in 1838, Elizabeth Hait executed an instrument to Herman Thorn purporting to be an assignment and release to him of her share in the estate of said Wm. Jauncey, deceased.
    When the said assignment from Elizabeth Hait was obtained, Herman Thorn also obtained from her an instrument authorizing him to substitute a solicitor for her in that suit, in the place of the solicitor she had employed, and authorizing such substituted solicitor to follow the directions of him, the said Herman Thorn. Thorn, accordingly, substituted another solicitor for the said Elizabeth.
    The defendant Hamilton in that suit was the administrator of Wm. Jauncey Thorn, deceased', a son of Herman Thorn, and claimed that the fund of which the complainants in that suit claimed shares belonged to the estate of his intestate.
    An arrangement was then made between the complainants in that suit and Rutherfurd, Herman Thorn and Jas. A. Hamilton, by which it was agreed that an order should he made in that suit by which Rutherfurd should pay the complainants therein $210,000, and the said Hamilton, administrator as aforesaid, the remainder of the personal estate of Wm. Jauncey, deceased, and thereupon an order was made, on motion of the counsel for Herman Thorn and Hamilton, the counsel for the complainants consenting, and the said substituted solicitor for Elizabeth Hait, by the direction of Thorn and on his behalf, consenting thereto, that Rutherfurd should pay $210,000 as the consideration for the assignment by the said complainants to Herman Thorn of their share; and that it be referred to a master to state an account of all the personal estate of the said Wm. Jauncey, deceased; and that Rutherfurd should pay the balance of said estate, after deducting such payment, to Hamilton, as administrator of Wm. Jauncey Thorn, deceased.
    Under this order an account was taken; and Rutherfurd delivered over to Hamilton $210,000; and, shortly afterwards, Hamilton delivered over this sum to Herman Thorn.
    A bill was then filed in the Court of Chancery of this State, by Archer Gifford, administrator &c. of Elizabeth Hait, deceased, against Mary Rutherfurd, executrix of the will of the said John Rutherfurd, and Herman Thorn, stating the foregoing facts ; and stating, further, that the said assignment and other instrument obtained by Herman Thorn from Elizabeth Hait were procured by fraud; that J. Rutherford, before the making of the said order made in the Court of Chancery of New York, well knew that the said Herman Thorn had no right to the said share of the said Elizabeth Hait; that he well knew all the circumstances attending the procuring of the said assignment by the said Herman Thorn from the said Elizabeth, and that the same was fraudulent against the said Elizabeth, and that he, the said J. R., would, if called upon by the said Elizabeth, be obliged to account for her share of the said estate; that the said J. R. so represented the case to the said Herman Thorn, and insisted that, before assenting to the said arrangement and the making of the said order, he the said J. R. should be indemnified against any claimant who should call him to an account touching the said estate or any share thereof.
    That, in consideration of the said J. R.’s consenting to the said order, the said Herman Thorn, on the 6th of June, 18ST, gave to the said John Rutherford a bond of indemnity, and a mortgage to, secure the same, to save harmless and indemnify him from all claims or demands in law or equity, that the said Elizabeth Hait, or any other person, might make against him on account or by reason of his paying over to the said Hamilton the said moneys..
    And this bill submits, that J. R. thereby became personally responsible to the said Elizabeth for her share thereof, as, in violation of his trust as such executor, he entered into an agreement with said Thorn by which-the said Elizabeth was defrauded of her claim against him, as executor, as aforesaid, for her share of the said moneys, and the same, with his knowledge and consent, .and in violation of her rights, was, through the said Hamilton, as aforesaid, paid over to the said Herman Thorn.
    This bill states, that the complainant has no copy of the said bond of indemnity; and that the complainant is informed and believes, that it is-now in the possession of the said Mary R., executrix, as aforesaid. And submits, that the complainant is entitled to a discovery from the said Mary of the contents thereof, and of all other papers in her possession relating to the said arrangement by which the said share of the said Elizabeth w'as transferred by the said J. R., deceased, through Hamilton, to the said Herman Thorn; and that the said Mary, as such executrix, must, together with the said Herman Thorn, account with the complainant for the said share of the said Elizabeth Hait.
    The bill states that Thorn alleges, that he paid the said Elizabeth $6,000 for the said alleged assignment and release by the said Elizabeth to him; and charges that the share of the said Elizabeth was worth oyer $200,000, as was well known to said Thorn.
    It states that, for the reasons therein given, the said order in the suit in N. Y. gave no additional or further right than the said alleged assignment and release to receive or hold the said share of the said Elizabeth; and that the said Herman Thorn, and the said Mary R., executrix &c. of J. R., deceased, are hound to account for and pay over the same to the complainant, administrator &c. of said Elizabeth Hait, deceased.
    The hill prays, that the said Herman Thorn, and Mary R., executrix &c., may answer the premises; and set forth what amount of said Jauncey’s estate was received by the said Herman Thorn, when and from whom, and in what manner ; and whether any and what consideration was paid by said Herman Thorn for the said alleged assignment by said Elizabeth Hait to him, and when the same was paid ; and a copy of the said alleged assignment and release; and a copy of the said bond from the said Herman Thorn to the said J. R. That the said alleged assignment and release may be ordered to be delivered up to be can-celled; and that the said H. Thorn, and the said Mary R., executrix &c. of J. R., deceased, may be ordered to account for and pay to the complainant such portion of the said Jauncey estate as has come to the hands of said H. Thorn, with the consent of the said J. R., or otherwise, and to which the said Elizabeth Hait was entitled in her life time.
    John Rutlierfurd, the executor of the will of Wm. Jauncey, deceased, and who paid over the personal estate of Wm. Jauncey, deceased, to Hamilton, administrator &c. of Wm. Jauncey Thorn, who paid it over to Herman Thorn, lived in New Jersey when he was appointed executor, and continued to live in this State until his death, and died in this State, leaving a will, of which the defendant Mary R. is the executrix; and the said Mary R. lives in this State. Herman Thorn, who obtained the said assignment and release from Elizabeth Hait of her share of the estate of Wm. Jauncey, deceased, and who received from the said Hamilton the said personal estate of Wm. Jauncey, deceased, lived, when he obtained such assignment and release, and still lives in N. Y. Wm. Jauncey lived and died in New York, and his will was proved there and his estate administered there.
    A subpoena was served on Mary R. A subpoena was issued, directed to Herman Thorn, which has been returned “ not found,” with the usual affidavit of his non-residence in this State, and of his residence in N. Y.; and thereupon the usual order for his appearance was made, and for the publication of the said order.
    A motion was made to vacate this order.

      Wm. Pennington and P. D Vroom in support of the motion.
    They cited 5 Cond. Ch. 198; 1 Stark, on Evid. 275, notes; 9 Mass. Rep. 462; 3 Wheat. 23; Rev. Stat. of N. Y. 71; 15 Ves. 164; 1 Scho. and Lef. 227; 2 Ves. 284.

      B. Williamson and A. Whitehead contra.
    They cited 17 Law Lib. 45, 6; 15 John. Rep. 145; 1 Stark. on Evid. 276; Calvert on Parties, 25; 1 Hopk. 213.
   The Chancellor.

This bill sets out a case on which it claims that J. R., deceased, who lived and died in this State, and who had in his hands the personal estate of Wm. Jauncey^ deceased, as the executor of his will, and who paid over to the administrator of Wm. Jauncey Thorn the said personal estate, including the share thereof which it is claimed belonged to Elizabeth Hait, became personally liable to the said Elizabeth Hait for her share of the said estate. The bill is filed against Mary Rutherfurd, the personal representative of J. R., deceased, as one of the defendants, and Herman Thorn the other defendant.

Wm. Jauncey, deceased, by his will, after certain devises and bequests therein, gave and bequeathed all the rest and residue of his property, of every kind and description, to Wm. Jauncey Thorn, when he arrives at the age of 21 years, to him and his heirs forever.

Wm. Jauncey Thorn died^at the age of 19. The bill claims, that by his death before attaining 21, the said residuary devise and bequest to him lapsed, and that the said residue and remainder thereupon belonged to, and was distributable among the next of kin of the testator, Wm. Jauncey, deceased, of whom Elizabeth Hait was one.

Herman Thorn is the father of the said Wm. J. Thorn. The bill states that the said Herman Thorn claims that the said residuary legacy to his said son Wm. J. Thorn was a vested legacy; and that he the said Herman Thorn, as his father, on the death of his said son, became by law entitled to receive the same. A subpoena was issued, directed to H. Thorn, and on its being returned not found,” the usual order for his appearance was made, and for the publication.

The question whether this legacy was vested or whether it has •lapsed lies at the foundation of this suit. It is a question in which Herman Thorn is interested. If it was a vested legacy, the foundation of E. Hait’s claim is gone. It was proper, therefore, that Herman Thorn should be named as a defendant, and that a subpoena should issue to him; and if returned not found,” an order of publication made. He might desire to come in and put the defense in the suit on this ground ; and might be willing to rest it on this ground. It is not till after this question in the cause is resolved in favor of Elizabeth Hait, that there is •or will be any necessity of considering the questions raised by the bill in reference to the assignment and release from E. Hait to H. Thorn, and the action of J. R. thereon or in connection therewith. And if there was really no serious doubt that the legacy lapsed, but it was clear to H. Thorn that his only claim to E. Hait’s share would be through the assignment and release from her to him, yet, inasmuch as he procured the assignment and release, and is therefore interested in preventing its being declared fraudulent, and more particularly from his having given, as alleged by the bill, a bond and mortgage to J. R. to indemnify him for paying it over to his son’s administrator, from whom ho would be entitled to receive it, there was no impro priety in naming him as a defendant, and issuing a subpoena and taking an order of publication as to him. He is certainly interested in this question as well as in the other; and he might desire, or be willing, to put the defense, if the other ground of’ defense should fail him, on the validity of the assignment and rlease.

The order of publication, therefore, was properly made.

The motion is to vacate it. If the permitting the order to stand, or if proceeding in the cause as it now stands, and without any action on the part of H. Thorn, would commit him to the jurisdiction of this court, so as to enable this court to make a decree against him personally, the motion might prevail. But,, if he is not subject to the jurisdiction of this court, and the subject matter which could be the foundation of any decree is not within the jurisdiction of this court, there is no propriety in vacating an order which was properly made. The issuing of a subpoena and taking an order for his appearance and publishing that order will not give this court jurisdiction, either over his person, or over the subject matter of the bill, if, from the nature of the case, the court has no jurisdiction over either.

So far as relates to the obtaining a decree against him personally, ordering him to pay the money he has received, no such decree can be made unless the court acquire jurisdiction over his person; and this order would not give such jurisdiction., 'As to the other part of the case, which goes against Mary Rutherford, and involves the validity of the assignment and release procured by Herman Thorn from Elizabeth Hait and the charges of knowledge, collusion, &c. in J. R., with a view to a decree against Mary R., executrix &c., H. Thorn is either a necessary party, from hi's having procured the assignment and his interest in establishing its validity, or he is not. That it was proper that he should be named as a defendant, to give him an opportunity of establishing the validity of the assignment and release, is, I think, clear. If he be a necessary party with the home defendant, for the purposes of a decree touching the validity or invalidity of the assignment and release, and J. R.’s knowledge, collusion,, &c., then the subpoena and order of publication as against him were proper, for they would make him sufficiently a party for that purpose. Whether he is a necessary party with the home-defendant in this view of the case, I am not now called upon to-say : his counsel will advise him as to this.

If the case be such that the court cannot give relief for want of jurisdiction over either the person or the subject matter, the jurisdiction may be objected to in any stage of the proceedings ; indeed the court would take judicial notice of it, and refuse any decree; it would not make a decree which it had no power to enforce. It is otherwise where the objection to the jurisdiction is that there is a perfect remedy at law: such objection must be taken by demurer or insisted on in the answer.

I see no reason for vacating the order of publication.

Motion denied.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Sarah M. Begbie v. John Begbie.
    On a motion for alimony pándente MU, on bill by the wife for divorce from bed and board on the alleged ground of cruel treatment, and answer filed and affidavits taken on both sides, it is proper for the Court to look into the merits of the case as thus far disclosed.
    The wife left her husband’s house without his knowledge, and took the two children of the marriage with her; and filed a bill for divorce from bed and board, on the alleged ground of cruel treatment; and applied for alimony pendente MU. The bill showed no sufficient cause for her leaving the house at the time when she did leave it. The court refused alimony, and said it would not be allowed unless, on her going back, with the children, to the husband’s'house, and offering to take her , place in the family, he should refuse to receive her.
    The case is sufficiently stated in the- opinion of tlie court.
    Motion for alimony, &e.

      A. O. Boylan, in support of the motion,
    cited Rev. Stat. 924, sec. 8, 10; 1. John. Ch. 108, 604; 4 Ib. 189; 4 Dess. 38, 79; 1 Green’s Ch. 459; 4 Paige, 516, 643; 2 Ib. 108, 621; 1 Edw. 62, 317, 255; Ib. 62; 1 John. Ch. 364, 441; Saxt. Ch. 383, 474 ; 2 Hoff. Ch. Pr. 245.

      A. C. M. Pennington and- A. Whitehead, contra,
    cited 2 Paige, 501; 9 Dana, 52; 3 Edw. 387; 3 Green’s Ch. 172; 1 Edw. 278; 4 Dess. 94, 119; Harper’s Eq. 144; 2 Paige, 454.
   The Chancellor.

The marriage took place in Feb. 1841. \The complainant left the defendant’s house in August, 1847-The bill was filed in September, 1847, and prays a divorce on the ground of cruel treatment.

The 8th section of the act concerning divorces enacts, that for' extreme cruelty in either of the parties, the Court of Chancery may decree a divorce from bed and board forever thereafter, or for a limited time, as shall seem just and reasonable.

Aher the filing of the bill, notice was given of an application to be made on behalf of the complainant for alimony pendente .lite, and for counsel fees for the prosecution of her suit.

After this notice was given, an answer was put in by the defendairt, and affidavits were taken on both sides ; and the bill, answer and affidavits were read on the hearing of the motion.

The complainant and the defendant had lived together for more than six years before the complainant left the house of defendant, and have two children; one a boy, now six years old ; the other a girl, about four years old. The bill complains, generally, of ill usuage, and of some particular instances of ill usage, without stating the times when they occurred. The complainant left the defendant’s house in August, 1847, and took her two children with her. The bill shows no immediate cause for her leaving at that time,; and she left, the answer says, without the knowledge of her husband. Nor does anything appear to show that she could not have remained safely, and free from personal injury. And even if she supposed that her own conduct was blameless, and that the defendant’s treatment towards her had been such as to give her a ground for divorce from his bed and board, there is nothing to show that there was any necessity for leaving his house and taking the children with her in order to in.stitute such a proceeding.

The great defect of the complainant’s case on this application is, that the bill shows no sufficient cause for her leaving the house at the time when she did leave it, if she ever had at any time just cause for leaving it; of which no opinion is now expressed.

Even after a decree for a divorce from bed and board for a limited time, and for alimony, alimony will be suspended on the agreement of the husband to take the wife home, and treat her properly.

In cases of this nature, in which, as a general rule, it is contemplated that the separation that may be decreed will be for a limited period only, and that the parties may come together again, it is proper for the court to look into the case before it lends its aid to the prosecution of the suit, and thus widens the breach.

Ill treatment in months past can be no sufficient cause for the wife’s leaving to-day. If she leaves her husband’s house without just cause at the time of leaving it, she takes a wrong stop, and she must retrace it before the court will oblige the husband to support her away from his house.

It will not be sufficient for her to send another to ask the husband if he will receive her. The only way she can retrace such a step is to go back herself, and if she took the children, to take them back with her.

In view of the case made by the bill, and of the answer and affidavits as to the temper and conduct of the wife, it would be a pernicious precedent to oblige the husband to furnish the means to prosecute her suit, and tó support her away from his house during its progress. And the denial of the application will, I think, be more conducive to reconciliation and peace than any temporary separation that might be decreed by the court at the end of the suit.

No alimony will be allowed, nor counsel fees to prosecute the suit, until she takes the children and goes back to her husband’s house and offers to return to her place in the family. If she does this, and he refuses to receive her into his house, she will be at liberty to renew her application.

Motion denied.


author: The Ordinary.

text:
    Daniel Runkle, appellant, and Alfred Gale, late Guardian of Daniel Runkle, respondent. On appeal from the Orphans’ Court of Warren.
    A guardian’s account, prejiared by himself, was presented to the Surrogate on the day the ward came of age, and was b}r the Surrogate, without being- particularly examined by him, (the gnardian showing the receipt of the ward, who was present and said he believed the account to be right,) reported to the Court and allowed by the Court. By a memorandum at the foot of the account it appeared that commissions, if they had not been paid by the ward, were waived by the guardian. It subsequently appeared that there weiemistakes in the account, against the ward; one in the footing of a column, and the other in a miscalculation of interest. On the application of the ward, the Orphans’ Court opened the account, on the showing of these mistakes apparent on the face of it, and directed a re-statement of the ae-i count, correcting these mistakes; and directed the allowance to the guardian, in the re-stated account, of the amount of the commissions which had thus been, if not paid by the ward, waived by theguardian; and directed the allowance of counsel fees to the guardian.
    The Ordinary, on appeal, directed both these allowances to be struck out; and directed the Register of the Prerogative Court to re*state the account accordingly.
    Daniel Runkle presented his petition of appeal, setting forth, that in the term of February, 1844, of the Orphans’ Court of
      the county of Warren, the final account of Alfred Gale, his late guardian, was settled in the said court; that afterwards, at an Orphans’ Court .held for said county on the 11th of September, 1846, on the application of the petitioner, and the allegation of mistakes in the settlement of said account, it was ordered that the said Gale show cause on the 21st of October then next, why the said account should not be opened and re-settled ; that on that day it was ordered by the said Orphans’ Court that the said acccount be opened and re-settled, for the cause aforesaid; that afterwards, on the 3d of February, 1847, at a special term of said court, it was ordered and decreed that the said account be allowed, with the following additions and exceptions, (prout the same,) and that there was a balance due the said accountant of $519 21; and_did further order, that the sum of $75 be paid by this petitioner as a counsel fee to each of the counsel of said accountant, and that all other costs be paid by the petitioner; that 'he is advised that the said decree is erroneous, and he thereupon appeals to this court, and prays an order on the said Orphans’ Court to return a transcript of the proceedings had before them touching the premises; and also an order that the said Gale may answer the appeal,_at such time, &c.; and that the said decree may be reversed, and that the petitioner may have such further relief, &c.
    On the reading of this petition, an order was made, that the Judges of the said Orphans’ Court do forthwith, on service of a copy of the order, make return, and send to this court the said account, and a transcript of the proceedings before them had touching the premises, and of the sentence or decree of the said court, and of all things had or done by them in relation to the re-settlement of the said account •, and an order was also made, that the said^Gale appear and answer the said appeal within 30 days after service of a copy of the petition and appeal and of the last mentioned order.
    By an order of the said Orphans’ Court, indorsed on a copy of the said order of this court, and signed by the Judges of said Orphans’ Court, that court directed the Surrogate to make return to the order of this court, according to the exigency thereof. And the Surrogate returned to this court, under his seal, a transcript of the proceedings of the said Orphans’ Court touching the premises ; among which is the first account of the accountant, with his oath annexed, “ that the account is just and true in all things, both in the charge and discharge thereof, according to the best of his memory and belief.”
    To this account is annexed the following note or memorandum :

      “To the Judges of the Orphans’ Court of the county of Warren : I, Daniel Runkle, above named, being now of full age, do acknowledge and certify that I have examined the annexed account, in the several items of the charge and discharge thereof, and pray the said Judges to allow the same as stated, I being satisfied of the correctness thereof. Daniel Runkle.”
    In the foregoing account, the amount which the accountant charges himself is ----- $32,276 94
    The a mount of the items for which he prays allowance Is ~ - 2,-102 16
    Leaving the balance in accountant’s hands, $29,824 78
    At the close of the account, and next preceding the oath, is this statement:

      “ Balance in accountant’s hands, due said minor at this date, out of which the said minor now has paid the accountant his commissions, $1,000, and the court charges on the settlement, $5, he being now of full age ; so that said accountant’s charges for commissions are satisfied in full.”
    At the special term of the said Orphans’ Court, held in Feb’y, 1847, that court made the following order :

      “ Daniel Runkle, exceptant, against Alfred Gale, Guardian of Daniel Runkle. On exceptions to final account opened 1 for correction of errors.

      “ This matter coming on to be heard at this time, and the court having heard and considered the evidence and allegations of the parties, it is ordered and decreed that the account of the said guardian, of which the above is a true copy, (this order being appended to a copy of the first account,) be allowed with the following additions and exceptions, viz:
    Error in interest, on the ward’s side of the account, or $15,028 73, received January 10,1840, 625 05
    Error in addition of disbursements, 199 99
    $825 04
    And in the same order the said court allow the guardian commissions $1,000 ; and find a balance due the guardian; and allow the guardian’s counsel $150 ; and order the said balance and counsel fees to be paid by the ward, together with all the other costs to be taxed; and order the Surrogate to state the account accordingly ; which he did.
    The rule to show cause why the account should not be opened is as follows :

      u The said Daniel Runkle having applied for a re-settlement of the accounts of Alfred Gale, late guardian &c., and alleged that there are mistakes therein, it is ordered that the said Gale show cause on the 21st of October next why the said accounts should not be opened and re-settled.”
    On the 31st of March, 1847, Gale filed his answer to the appeal. The testimony taken before the Orphans’ Court was reduced to writing, and was sent up to this court with the other proceedings.
    There was exhibited before the Orphans’ Court, on the part of the guardian, a writing signed and sealed by Daniel Runkle, 'witnessed by John M. Sherrerd, subscribing witness, dated February 28,1844, by which Runkle says, that in consideration of a final settlement that day had and made by Alfred Gale, his late guardian, and of the sum of $29,874 78 to him paid, he remises, releases and forever discharges the said Gale of and from all actions, suits, demands and claims whatsoever which against said Gale, as his guardian, he ever had, now has, or can have. There is a certificate subjoined to it of the acknowledgement of the said instrument by Runlde, before a Master in Chancery, also dated Feb. 28, 1844.

      Jl. Wurts and P. D. Vroom for the appellant.
    They cited 6 Halst. Rep. 44; 1 Spencer’s Rep. 126; 4 Harr. Rep. 83; Rev. Stal. 214, sec. 27.

      Sherrerd and W. Hoisted for the respondent.
    They cited 3 Dessau, 93; 18 Ves. 383; 2 Ves. Sen. 566; 6 Gill & John. 424; 2 Atk. 112; 3 Harr. Rep. 266; Ib. 59, 67; Rev. Stat. 214, sec. 26; 2 Smith’s Ch. 20, 21; 15 Ves. 72; 10 Ib. 562; 1 Bro. Ch. 140; 3 John. Ch. 48; 2 Ib. 14; 4 Russell, 180; 6 Halst. Rep. 44, 61; 1 Ves. Sen. 409; Shep. Touch. 320, 322, 334, 340, 343; Bac. Ab. Release; 6 John. Ch. 249; 1 Hopk. 334; 1 Serg. & Rawle, 317; 5 Wend., 6 Wend. 620, 628, 632; 18 Wend. 350; Hopk. 408; 3 Gill John. 311; 1 Munford, 119.
   The Ordinary.

The mistakes on account of which Runlde applied to the Orphans’ Court to open the account wore mistakes against him on the face of the account; one being a misfooting of a column, and the other a miscalculation of interest. It appears from the testimony that these mistakes were not discovered by Runlde until 1846, after the giving of the release from him to Gale. Gale did not set up the release in opposition to the application to the Orphans’ Court to open the accounts; nor did ho appeal from that order. When he was called on to correct these errors, he refused, and said the court should settle it; and he would charge commissions. It is not necessary, therefore, to inquire whether the release would have prevented the opening of the account. It appears from the testimony that Gale stated the first account himself ; and the account, as stated by him, was passed by the court, without being particularly examinbd either by the Surrogate or the court; but the statement at the foot of the account in reference to commissions was appended at the suggestion of the Surrogate. This account was thus passed by the court on the day Runlde came of age.

The question is, were the Orphans’ Court right, the accounts having been opened for the correction of such mistakes, to allow commissions to the guardian on the re-statement of the accounts. I think not. If the guardian did not actually receive the §1,000 commissions mentioned in the memorandum at the foot of the first account, it must be that he waived commissions. He cannot now, as an offset against errors in figures, in. his favor, on the face of the account, recall that waiver and charge commissions. The surmise that he knew of these mistakes, and therefore waived commissions, would not relieve him, but would convict him of fraud.

It was said by counsel for the accountant that an allowance for commissions is not a subject of appeal. That question does not arise in this case. The subject of this appeal is, that the Orphans’ Court, on re-stating an account which was opened for the correction of mistakes against the ward, in figures, apparent on the face of the account, allowed to the guardian commissions which, if he had -not received on the settlement of the first account, he had then waived. The commissions will be struck out of the re-stated account. The counsel fees allowed to the guardian in the re-stated account will also be struck out. This will throw the balance of the account against the guardian; and the costs will follow the result.

The account will be ordered to be re-stated by the Register of this Court, in accordance with these views.

Order accordingly.


text:
    Robert Lewis v. John H. Hall.
    A deed of land was made to A. and 13. in November, 1822, which was recorded in March, 1823. A. conveyed an undivided half of it to C., by deed dated Feb. 5,1827, which was recorded Feb. 20, 1827. G. conveyed his undivided half to D., by deed dated April 27, 1833, which was not recorded until August 5, 1845. On the 23d May, 1840, deeds of partition were made between B. and D., which were both recorded on the same 23d,of May, 1840. D. convoyed the half which had been set off to him in the partition to E., by deed dated March 14,1842, which was recorded May 7,1842; I'l convoyed this half to by deed dated May 0,1842, which was recorded May 7, 1842; and on the same day 14 gave to E. a mortgage on this half; to secure a part of the purchase money, and also made a lease of it to E. until the first of April thereafter. F. died; and in April, 1843, the administrator of his estate, by order of the Orphans’ Court, sold the half to G. and executed a deed to him, which was recorded Feb. 20, 1S44. G. conveyed this half to H., by deed dated December 8, 1844, and recorded Nov. 7, 1845. In July, 1844, T. recovered a judgment against C.; and, shortly after, caused an execution to be issued on the judgment and levied on this half, and claimed that, inasmuch as the deed from C. to D. was not recorded at the time of the recovery of his judgment, the half thus held by H. was subject to the judgment and execution, by force of the of the statute of New Jersey, Rev. Stat. 648, sec. 18.

      JldJ, that the same facts which would charge a purchaser from C. at the time of the entry of the judgment with constructive notice, would prevent the judgment’s becoming a lien on the land thus held by II. That the said statute does not require actual notice; but that constructive notice is sufiiciont.
    N. was a bona fide purchaser for a valuable consideration from M., by deed dated May 6, 1842, recorded May 7, 3 842. M. was then in the actual possession and occupancy of the premises thus convoyed by him, a considerable portion of it being cleared, and he cultivating it as a farm. M. had received a deed for the premises on the 14th March, 1842, which was recorded May 7, 1842. In May. 1840, partition, by deeds, of a tract of land including the premises in dispute was made between S. and M.’s grantor, by which the premises in dispute had been set otf, by metes and bounds, to M.’s grantor. Those deeds of partition were recorded May .23, 1840. The testimony showed that the parts thus conveyed, by metes and bounds, by these deeds of partition, had been by agreement occupied separately before these deeds of partition were made, according to the boundaries of the separate parts given by those deeds; and that S. and M.’s grantor had possessed and occupied, and exercised the usual acts of possession and ownership, notoriously, from April 27, 1888, on which last mentioned day, O. had conveyed an undivided half of the whole tract to M.’s granor. This deed from C. to M.’s grantor was not recorded until August 5> 1845.

      Held, that these facts would charge apurchaser fromC. in July, 1844, with cons tractive notice.
    On the 27th of November, 1822, the executors of the will of Daniel Stuart, deceased, by virtue of a power in the will for that purpose, sold and conveyed to Jaocb L. Struble and Peter L. Struble a tract of land in the township of Newton, county of Sussex, containing 246 56-100 acres. This deed was duly recorded on the 6th of March, 1823.
    On the 5th of February, 1827, Jacob L. Struble and his wife, for the consideration of $1,000, sold and conveyed to Uzal C. Haggerty the undivided half part of the said tract. This deed was recorded on the 20th of February, 1827.
    On the 27th of April, 1833, Uzal C. Haggerty and his wife, in consideration of $1,250, sold and conveyed to Jacob Morris, Peter Morris, Dennis Morris, Elizabeth Moni s and Mary Morris his undivided half of the said tract. This deed was not recorded till August 5, 1845.
    On the 23d of May, 1840, Peter L. Struble and the Morrises made partition; 123 28-100 acres being conveyed by motes and bounds to Struble and the like quantity to the Morrises. These partition deeds were both recorded May 23,1840. They describe the tract divided, as the tract conveyed by the executors of Daniel Stuart to Jacob L. Struble and Peter Struble by deed dated November 27, 1822.
    On[the[14th of March, 1842, the Morrises, by deeds, made partition among themselves of the said 123 28-100 acres which had thus been conveyed to them by metes and bounds, together with other lands which they owned as tenants in common; and in this partition this 123 28-100 was conveyed by the other Morrises to Jacob Morris. This deed states that this 123 28-100 acres is a part of a tract containing 246 56-100 acres, conveyed by the executors of Daniel Stuart to Peter L. Struble and Jacob L. Strublejby deed dated November 27? 1822. This deed fas recorded May 7? 1842.

      On the 6th of May, 1842, Jacob Morris and his wife, for the consideration of $3,936, convoyed this 123 28-100 acres to John Northrup. This deed states that this tract is part of a tract of 246 56-100 acres conveyed by the executors of Daniel Stuart to Peter L. and Jacob L. Struble, by deed dated November 27, 1822. This deed was recorded May 7, 1842.
    On the same 6th of May, 1842, Northrup and his wife executed a mortgage to Jacob Morris on the same tract of 128 28-100, to secure $9,826 of the purchase money. This mortgage was recorded May 7, 1842.
    On the same 6th of May, 1842, Northrup, by lease in writing under seal, stating that Jacob Morris had that day sold to him the said farm containing 128 acres, leased the same to the said Jacob Morris, in consideration of the interest on the purchase money for the said farm, until the 1st day of April thereafter ; the said Jacob Morris to use the said farm in a farmer-like manner, and to commit no waste, and to have the privilege of harvesting tiro crop of winter grain lie might sow upon the premises that fall.
    After the death of John Northrup, Robert Lewis, the complainant in this suit, as administrator of J. Northrup, under an order of the Orphans’ Court of Sussex county, made April 18, 1848, did, by deed dated February 20, 1844, sell and convey this tract of 123 28-100 acres, with other lands, to Arminda Northrup, the widow of J. Northrup, deceased, for the consideration of $84 75. This deed states that this 128 28-100 acres is the same tract that was conveyed to the said J. Northrup, deceased, by Jacob Morris and his wife, by deed dated May 6, 1842, and recorded, &c., and is part of a tract of 246 56-100 acres conveyed by the executors of Daniel Stuart to Peter L. and Jacob L. Struble, by deed dated November 27,1822. This deed was recorded February 20, 1844, the sale having been confirmed by the Orphans’ Court on the 30th of January, 1844.
    By deed dated December 8, 1844, acknowledged December 13, 1844, Arminda Northrup, who was a daughter of Robert Lewis, conveyed the lands so conveyed to her by the deed next before mentioned, to the said Robert Lewis, for the consideration therein expressed of $500. This deed was recorded November 17,1845.

      In July, 1844, John H. Hall, the defendant in this suit, recovered a judgment in the Circuit Court of Sussex county against Uzal C. Haggerty, on which judgment execution was issued, returnable the 8d Tuesday in August, 1844, indorsed “ Levy the sum really due j debt $1,027 13; costs of judgment, $4 ; costs after judgment, $1.” (It was a -judgment by confession, on bond and warrant of attorney to confess judgment.) This execution was levied on goods and chattels of Haggerty, and on a farm in the township of Frankford,. of 90 acres, and on the undivided half of a house and lot where Hiram Dennis then lived, containing half an acre, and another lot in Franford, containing about ten acres, subject to prior incumbrances.
    Another execution was afterwards issued on this judgment against the goods and lands of Haggerty, tested the 4th Tuesday in May, 1845, returnable the first Tuesday in August, 1845 ; under which the Sheriff levied “ on the undivided equal one half part of the tract or parcel of land, containing 246 56-100 acres, (describing it, and giving the boundaries thereof as given in the said deed from J. L. Struble and wife to Haggerty,) and stating it to be the same tract conveyed to Haggerty by Jacob L. Struble and wife by deed dated February 5, 1827. This execution was also levied on several other tracts of land, and on personal property of Haggerty.
    This execution was levied on the undivided one half the said tract of 246 56-100 acres by the direction of John H. Hall. Under this execution the Sheriff advertised a sale of this property.
    The bill states, that from and after the 27th of April, 1833, when Haggerty conveyed his undivided half to the Morrises, the Morrises, or some of them were in the actual possession and occupancy of the same ; and that after the partition between Peter L. Struble and the Morrises, the Morrises, or some of them, were in actual possession up to March, 1842, when the one-half which they got in the partition was conveyed, in severalty, to Jacob Morris, and that he thereupon entered into the occupancy thereof, and was seized and possessed thereof until May 6,1842, when he sold and conveyed it to J. Northrup ; and that Northrup occupied and possessed it till his death,-■-; and that his administrator, under an order of the Orphans’ Court, sold it, in December, 184-3, to pay the debts of Morthrup, to the widow of Northrup, who afterwards, in December, 1844, conveyed it to Robert Lewis, her father, who, as administrator &c. of Northrup, had sold and conveyed it to her; Hall having, between the said administrator’s sale and' the conveyance by the said widow to Robert Lewis, to wit., on the 27th of June, 1844, obtained a judgment against Haggerty, by confession on bond and warrant of attorney to confess judgment.
    The bill states the foregoing facts; and states, further, that at the time of the said levy under Hall’s second execution, Robert Lewis, the complainant, was in the open and peaceable possession of the said 123 28-100, so divided by metes and bounds; and that he and those under whom he claims had occupied it for upwards of twelve years after it was so sold and conveyed by Haggerty ; that Hall, when he directed the said levy to be made, well knew that the said land was not the property of Haggerty, but that the same bad been sold and conveyed by Mm a number of years before; and that the persons to whom he sold, or those claiming under them, had, ever since the sale, been in the peaceable and undisturbed possession of the said property, claiming title thereto.
    That, though the deed from Haggerty to the Morrises was not recorded before the said levy; yet that Hall had actual knowledge of the same, as the complainant believes; and knew that Haggerty had not, for a number of years, owned or possessed the same ; and that partition had been made of the said" property, and that the same was held, and for some years had been held in severalty; that Hall, at the time of the filing of the bill, was, and had been since February, 1841, Clerk of Sussex county; and charges that, while such Clerk, Hall saw, examined and compared the before-mentioned deeds, which were recorded while he was such Clerk.
    That Hall has directed the Sheriff to advertise aiid sell the undivided half so levied on as aforesaid ; and that the Sheriff has advertised the same to be sold on the 13th of November, 1845, to satisfy the said judgment and execution. The bill prays an injunction until the further order of the court, restraining the sale, and a perpetual injunction.
    The preliminary injunction was granted.
    On the 23d of July, 1846, Hall filed his answer. He admits that the executors of Daniel Stuart, deceased, conveyed to Jacob L. and Peter L. Struble the land described in the bill, and that the same was recorded as mentioned in the bill; that the said Jacob and his wife conveyed to Haggerty an undivided half of Said land, and that this deed was recorded as stated in the bill; and that Haggerty and his wife, about the time mentioned in the bill^ sold and conveyed the said undivided half to the Morrises,, and that this deed was recorded as stated in the bill; but he says he has no actual knowledge nor information concerning the same, except from having seen the said deed in the Clerk’s office, about the time it is stated in the bill to have been recorded, to wit., about August 5, 1846.
    Admits that the Morrises and p. L. Struble, about the time* for that purpose mentioned in the bill, executed quit-claims to . each other, as mentioned in the bill, and that the same were recorded as stated in the bill.
    He says he is informed, and believes it to be true, that the said premises were not occupied, from and after the said conveyance by Haggerty tt> the Morrises, in the manner and by the-persons stated in the bill. On the contrary, he is informed and' believes it to be true, that at the time of the conveyance of the undivided half by Jacob L. Struble to Haggerty, one Ahumy Bell resided upon the said premises in the bill mentioned as owned by the said Jacob and Peter Struble ; and that the said Bell had resided there for many years previous, in a small dwelling house erected by him, and occupied the said premises or a small part thereof; and that after the death of the said A. Bell,, his'son, Jos. Bell, continued to occupy the said dwelling house and a small part of the said premises which had been cleared, until five or six years ago; and that there was, during all that, time, but a small clearing on the said premises, principally around the buildings, the residue of the premises consisting of’ timber and woodlands and barren bushes ; and that he has been-informed and believes that it was understood and believed in the neighborhood that the said A. Boll and Jos. Bell occupied the said premises as tenants of Jacob L. and Peter L. Struble ; that he has also been informed and believes that after Jos. Bell left the said premises, Jacob Morris moved into the bouse upon the said premises which the said Jos. Bell had occupied, and remained there until he removed to Frankford; hut that this defendant-has no actual knowledge of the same; nor did he know, nor was he informed of the said occupancy by the said Jacob Morris at the time of obtaining his judgment against Haggerty, nor when the levy under his execution was made.
    That ho has been informed and believes that the said Jacob Morris did, at the time for that purpose mentioned in the bill, make and execute some such deed of conveyance to John Northrup as is stated in the bill, and that the same was acknowledged and recorded in some such manner as is stated in the bill.
    That he has been informed and believes that the said J. Northrup and Arminda his wife did, at the time for that purpose-stated in the bill, execute some such mortgage to Jacob Morris, and that the same was acknowledged and recorded in some such manner as is stated in the bill.
    That ho has been informed and believes that the Orphans5 Court of Sussex ordered the said administrator of J. Northrup, deceased, to sell his real estate to pay his debts ; and that the said administrator sold the said lands for the purpose mentioned in the bill to tho said Arminda Northrup, the widow of the said J. Northrup, and the daughter of the complainant; but that bo has reason to believe, and so charges the truth to be, that the said salo and conveyance to the said Arminda were made under the direction of the complainant, and with the expectation and for tho express purpose of being conveyed to the complainant.
    He admits that lie has been informed and believes that, about the time for that purpose stated in the bill, the said Arminda did make some such conveyance to the complainant as is stated in the bill, and that the same was acknowledged and recorded in some such manner as is therein stated. But he insists that such conveyance and sale was in pursuance of an understanding and arrangement made at the time of the sale by the complainant as such administrator, to the said Arminda.
    He says that his said judgment against Haggerty was con - fessed to him for money justly and honestly due him from Haggerty on account of moneys which he had before then been compelled to pay for Haggerty as his surety in a certain bond.
    That at the time of the recovery of his said judgment against Haggerty, and when the levy was made on the said lands and premises in the bill mentioned, he had no knowledge or information that the said lands and premises had ever been in the possession of the said Jacob Morris, Peter Morris, Dennis Morris, Elizabeth Morris and Andrew Manning, or any of them; nor had he heard of their having occupied the same; nor did he know that the said lands had been in the actual occupancy or possession of the said J. Northrup, or Arminda Northrup, or the complainant, or any of them; nor had he heard of their occupying the same. Nor does he believe that the said tract of land was openly occupied by the said Jacob Morris, Peter Morris, Dennis Morris, Elizabeth Morris and her husband Andrew Manning, •and Mary Morris, or any of them, during all the time from and after April 27, 1833, up to March 14, 1842, as stated in the bill. On the contrary, he has been informed and believes, and ■so charges the truth to be, that the greater part of the said premises consisted of timber and woodlands and barren bushes, except a small clearing on said premises around the house erected by A. Bell and occupied by him, and wherein he resided for many years and at the time of the conveyance of the said undivided half of the said tract of land and premises by Jacob L. Struble to Haggerty; and that, after the death of said A. Bell, his son Joseph Bell continued to reside on the said premises until the time when the said Jacob Morris moved upon the property and took possession of the same as stated in the bill; and that this was the only occupancy of the said premises which was apparent or known to the people living in the neighborhood, as this defendant has been informed and believes. And he has also been informed that, after the said Jacob Morris moved off the said premises, the house in which he had résided was left empty, being old, and has become unfit for use; nor has the same since been occupied by any person.
    That he has been informed and believes that, after the said Jacob Morris left the said premises, the said J. Nortlirup occupied and cultivated some part thereof ; that he has been informed that, after the death of J. Nortlirup, the said Robert Lewis (the complainant) occupied and cultivated some part of the said premises ; but that he has no knowledge or information as to any occupancy or possession of the said promises by the said Arminda Northrup, as stated in the bill.
    That he has been informed and believes, and so charges the truth to be, that Haggerty, after his said purchase from Jacob L. Struble, never actually occupied the said premises; but that, so far as any possession of the same was apparent, they were occupied by Peter L. Struble or his tenants long after the conveyance by Haggerty and wife was made; and that the greater part of the said tract, being woodland uninclosed, remained in the same situtation after the purchase by Haggerty and after the sale by Mm; so that no apparent change of possession took place, as it did not appear that there was any occupancy of the said premises, except the occupancy of A. Bell and Joseph Bell as before stated, until the said Jacob Morris entered into the possession of some part thereof.
    That at the time when he obtained his said judgment against Haggerty there was not any such occupancy of the said premises as would be apparent; nor was it known to him in whose possession or occupancy the said premises actually ryere.
    He insists that, in searching for titles of land to or from Haggerty, there are no deeds which were recorded prior to the timo when he obtained his judgment against Haggerty and when his said levy was made, which would necessarily and probably lead to the knowledge of the conveyance by Haggerty and wife to the Morrises ; and ho insists that he was not bound to look for deeds from other persons than Haggerty in order to obtain the knowledge of the conveyance of the said tract of land by Haggerty.
    He says that, at and before the time when he recovered his said judgment against Haggerty, he had not discovered the said deeds and conveyances or mortgage set forth in the bill, nor the records of the same in the Clerk’s office of Sussex ; nor had he any knowledge of them, or any of them, according to his recollection and belief.
    He denies that at and before the time when his said judgment was recovered he knew, or had been informed, that Haggerty had sold or conveyed to the said Jacob, Peter, Dennis, Elizabeth and Mary Morris the undivided half part of the aforesaid tract of 246 56-100 acres ; nor did he at or before the recovery of his said judgment know, nor has any recollection or belief of having heard of the several sales and conveyances as set forth in the bill as being made by Haggerty and wife and subsequently thereto of the said tract of land or any of them.
    He says that at and before the recovery of his judgment against Haggerty he did not know, nor had he ever heard, that the said Jacob Morris, Peter Morris, Dennis Morris, Mary Morris, Andrew Manning, John Northrup and Arminda Northrup, or any of them, were in the possession of the said tract of land, claiming and reputed to be the owners thereof.
    That at the time of the recovery of his said judgment he resided at Newton, Sussex county, and, as he supposes, about four miles from the said tract of land levied on as aforesaid; but he has no knowledge of ever having been over the said tract of land until in the month of July, 1845, and after the levy ; when, he believes, he was on a part of this tract; nor does he believe that he ever passed over the said tract at any other time, unless the public road from Pleasant Valley to Myrtle Grove passes over the same; but whether it does, he does not know; nor did he, if. he ever passed over the same, know whose land it was, or in whose possession it may have been.
    That at the time of the recovery of „his said judgment he did not know, nor had he heard, that the said Jacob Morris and his wife had conveyed to the said J. Northrup the said tract of land in the bill set forth, and more particularly described in the said deed from Jacob Morris and his wife to J. Northrup ; nor did he know nor had he heard of the said Northrup being in possession of said tract.
    That he does not admit that he had heard that a man by the name of Morris had sold a tract of land to the said J. Northrup ; but bo expressly denies tliat lie knew or tliat he had heard that it was the said tract so levied on as aforesaid, or that it was a tract which had been owned by Haggerty ; nor did he hear or know what tract was so convoyed.
    He says he commenced acting as Clerk of Sussex, February 15, 1841, and ceased February 14, 1846.
    That while he acted as Clerk he generally assisted in comparing the deeds with the records ; hut he sometimes had other persons to compare them. But he has no recollection of having examined or compared with the records of deeds in said Clerk’s office such of the deeds mentioned in the bill as were recorded while he was Clerk, or any of them. And if ho did assist in comparing or examining the same, or any of them, ho did so in the regular course of business, and not with any view of tracing-titles ; and the contents thereof made no impression on his mind or recollection.
    Ho admits that special directions were given by his attorney to the Sheriff to levy on the undivided half of the said tract of land, but insists that such directions were properly given ; and that, as a judgment creditor of Haggerty, and without notice of any conveyance from him of the [said lands and premises, he had a right to levy on and sell the said tract of land for the payment of his said debt.
    Ho says that, inasmuch as the said deed from Haggerty and wife, dated April 27, 1888, and more particularly mentioned in the hill, at the time when he recovered his said judgment and when the levy upon the said property was made, had not been recorded according to law, and ho at that timo never having seen the said deed, nor having any notice of the said conveyance, he had no legal notice that the said property was not owned by Haggerty at the time of his said judgment and levy ; and insists that, being a judgment creditor of Haggerty, the said conveyance not having been recorded when he obtained his said judgment, and he not having any notice of the said conveyance by Haggerty, the same was, by the statute, absolutely void and of no effect as against him.
    Testimony wras taken, and the cause was heard upon the pleadings and proofs.

      P. D. Vroom and' W. Halstei for the complainant.
    They cited 1 Gallison’s Rep. 41; 2 Fonbl. Eq. chap. 6, sec. 3, note M.; 1 Chan. Cases, 287; 2 Vern. 662; 1 Atk. 490; 6 Wend. 220, 226; 4 N. Hampshire Rep. 262, 266; 2 Mass. Rep. 508; 2 Rand. Rep. 93; 3 Pick. Rep. 140; 4 Mass. Rep. 637, 639, 640; 2 Sugd. on Vendors, 335, 7, 343; 2 Ves. Junr. 440, 437; 14 Ib. 433; 16 Ib. 249, 254; 2 Scho. & Lef. 583; 2 Swanst. 181; 1 Meriv. 282; 1 Jac. & Walk. 181; 2 Green’ Ch. 154; 3 Ib. 492; 4 Dana, 258; 6 Ib. 59.
    5'. Cr. Potts and Gov. Haines for the defendant.
    They cited Rev. Stat. 643, sec. 18; Patterson’s Stat. 399; 2 Sumner’s Rep. 491, 551; Sugd. on Vend, (old edit.) 532, 535, 542; 2 Scho. & Lef. 327; 1 John. Ch. 574; 3 Atk. 654; 2 Ib. 275; 12 John. Rep. 452, 3; 2 Ib. 130, 182; 8 Ib. 137, 9; 1 Story’s Eq., sec. 399, and note, sec. 400; 2 Sugd. on Vendors, 339; 2 Myln. & K. 629, 632, 3; 14 Serg. & Rawle, 333; 1 Wash. Rep. 4; 8 Cowen, 260; 10 John. Rep. 457; 3 Ves. 478; 2 Atk. 275; 3 Sugd. 451, 3, 473; 2 Pow. on Mortg. 577, note Y.; 13 Ves. 122; 8 John. 141; 18 Ib. 555; 1 Ves. Jun. 425; 1 Scho. & Lef. 327, 337; 3 Mod. 33, 274; 19 Ves. 440; 14 Mass. Rep. 269, 303.
   The Chancellor.

It was said in argument, on the part of the defendant, that, from the manner in which the complainant got the title in him, he had no equity calling for his protection against the judgment of the defendant.

The question whether the sale by him, as administrator of J. Northrup, deceased, and the subsequent conveyance of the property to him by the purchaser at that sale, were good as between bim and those interested in the estate of Northrup, is not before us in this cause. For the purposes of this cause, the complainant stands in the place of J. Northrup, and holds the same position as if the questions involved in this cause were presented in a proceeding in this court between J. Northrup and J. H. Hall as a judgment creditor of Uzal C. Haggerty.

As between them the case stands thus : Northrup was a bona fide purchaser for a valuable consideration on the 6th of May, 1842, by deed recorded May 1,1842, from Jacob Morris. Jacob Morris was then in the actual possession and occupancy of the property, a considerable portion of it being cleared, and he cultivating it as a farm. The partition deeds between the Morrises, by which this property was set off in severalty to J acob Morris, had before been made, and were recorded the same day the deed from Jacob Morris to Northrup was recorded. On the 23d of May, 1840, partition ivas made between Peter L. Struble and the Morrises, by which this 123 28-100 acres was set off in severalty to the Morrises ; and these partition deeds were recorded May 23d, 1840. The testimony shows that the parts conveyed by metes and bounds by these deeds of partition between Peter L. Struble and the Morrises, had been, by agreement, occupied separately before these deeds were made, according to the boundaries of the separate parts given by these deeds ; and that Peter L. Struble and the Morrises had possessed and occupied and exercised the usual acts of possession and ownership, notoriously, from April, 1833, the timo when Haggerty conveyed to the Morrises his undivided half of the property, i. e. of the whole trac t of 246 56-100 acres. Horec was a notorious possession under title, from April 1833, to May 1842, when Northrup bought ; and he bought of a man in the actual possession and occupancy under the same title ; and the partition deeds between Peter L„ Struble and the Morrises were on record, recorded May 23, 1840.

Under the circumstances under which Northrup purchased, it cannot be doubted that he would hold against a purchaser under the Haggerty title on the day on which Hall’s judgment against Haggerty was entered. Such a purchaser would clearly have been chargeable with notice.

The 18th section of the “Act respecting conveyances” provides, that every deed for landsjo any purchaser of the same, made since January 1, 1821, shall be void and of no effect against a subsequent judgment creditor or bona fide purchaser or mortgagee for a valuable consideration, not having notice thereof, unless such deed shall be recorded within fifteen days after the time of signing, sealing and delivering the same.

If this section is to be read so as to exclude constructive notice, then, if a deed is made to-day by A. to B., and recorded 16 days hence, of'property of which B. goes into possession, and which he occupies for years and then sells to C., and of which C. goes into possession, and which he occupies for years and then sells to D., all which intermediate deeds are duly recorded, and then E., twelve, fifteen or nineteen years after the deed from A. to B., recovers a judgment against A., the deed from A. to B. is void as against such judgment creditor, unless, before his judgment was entered, he had actual notice of the deed from A. to B. I apprehend that such a reading of this section cannot be sustained.

The section was not intended to exclude the idea that such a state of facts might arise, by sale by the purchaser from A., and by his grantee to another, and so on through several conveyances, through a long course of years, the actual possession accompanying the several titles, and all the intermediate deeds duly recorded, as will charge a creditor obtaining a judgment against A. after all this, and for a debt that may have accrued but yesterday, with constructive notice of the deed from A. to B.

Another view of the statute might be taken. It provides that every deed from a grantor against whom a judgment shall be subsequently recovered, shall be void &c. It does not say that a deed from such grantor’s grantee to a bona fide purchaser from such grantee, duly recorded, shall be void against a subsequent judgment creditor of the first grantor. It leaves untouched the-doctrine that, though a deed from A. to B. may be void as against a subsequent judgment creditor of A., yet a deed from B. to C. , a bona fide purchaser from B., may be good against such subsequent judgment creditor of A.

I am of opinion that a judgment creditor stands on no better ground under this statute than a purchaser; and that what would charge a subsequent purchaser with constructive notice will charge a subsequent judgment creditor with the notice contemplated by this statute. And I am of opinion, further, that the facts in this case would be sufficient to charge a subsequent purchaser, buying at the time the defendant’s judgment was entered, with constructive notice.

In reference to the answer in this case, I do not think it comes up to a full denial of actual notice.

Decree for complainant.


author: The Chancellor

text:
    Elijah G. Cattell v. William H. Nelson.
    On a notice of a motion to .dissolve an injunction given before answer filed, an answer filed after the notice, though it be filed ten days before the day fixed by the notice for the hearing'of the motion, cannot be read in support of the motion.
    On the 17th April, 1848, Elijah G. Cattell filed a bill against William H. Nelson, and obtained an injunction. On the 21st of April, 1848, no answer being then filed a notice was given, on the part of the deft., of a motion to be made on the 3d of May, 1848, to dissolve the injunction. On the 1st of May, 1848, an answer was put in.
    On the 3d of May, the day for which the motion to dissolve was noticed, the counsel of the respective parties appeared before the court.

      R. P. Thompson, of counsel for the defendant, offered to read the answer in support of the motion to dissolve.

      J. Wilsons for the complainant, objected, and referred to Rev. Stat. 908, sec. 16.
    The Chancellor said the answer could not be read.

      Mr. Thompson then moved, that the argument of the motion be postponed to some day, to be fixed by the court, beyond ten days from the filing of the answer.
   The Chancellor

said there must be a new notice. That when a party receives a notice of a motion to dissolve, he has a right to expect that the motion will be grounded on the casé as it exists at the time of the notice.


text:
    Jacob Ridgeway v. Richard S. Ludlam.
    If an agent for the performance of certain services for which a salary or yearly sum is to be allowed him, neglect to keep an account of moneys received by him in his agency, and several annual accounts are settled between him and his principal in which considerable amounts of money previously received by him are omitted to be credited to the principal, and the omission is not supplied until the principal, in consequence of information received from others, makes inquiry of the agent in reference thereto, the salary or yearly sum for the years in which such omission, occurred should be disallowed.
    The bill states that in the year 1822, Jacob Ridgeway, the complainant, was the owner of several large tracts of land in the County of Cape May, principally wood-land, and on which was growing a large quantity of timber, and trees calculated for making cord wood, saw stuff, and other lumber; having also, thereon two saw-mills ; one tract, called the East Creek Tract, containing upwards of 5000 acres; another, called the David Johnson Tract, containing about TOO acres; and throe others, near Goshen, called the Green and Beaver Dam Tracts, containing about 600 acres. That in the year 1822, ho agreed with Richard S. Ludlam, the defendant, and appointed him his agent and bailiff, and placed the said lands, saw-mills and appurtenances in his care and charge, to preservo the same from the trespasses of others, and from time to time, as directions should be given by him, the complainant, to cut the timber on said tracts into cord wood and lumber, and send the wood and lumber to him, or elsewhere, as he should direct. That the said Ludlam, being engaged in storekeeping, and residing near the East Creek Tract, and as h.e could pay for the cutting and carting the wood and lumber out of his store, and receive the cash from the complainant, and thereby make a profitable business for himself, accepted the said agency and charge, for the purposes aforesaid; for which services the complainant agreed to allow him $150 a year, and pay him for the wood cut on the tracts near Goshen; and placed upon the landing, $1,50 per cord; and for the oak wood cut on the East Creek Tract and carted to the landing $2 per cord; and for the pine wood $>1<75 per cord; and $5,93 per 1000 feet for the hoards, scantling, and other sawed lumber,, when put upon the landing.
    That, accordingly, in the year 1822, Ludlam took the charge and care of the said lands, saw-mills and appurtenances, as the complainant’s agont, upon the said terms, and so continued until May 1839 ; during which time he cut and caused to be cut, annually, great quantities of cord wood, ship timber, boards, scant-ling, hoop poles, and other kinds of lumber, part whereof was sent and delivered to the complainant, part sold by Ludlam to other persons and the price thereof paid to Ludlam; and that Ludlam also received from sundry persons divers sums of money for sawing done for them at the said mills; and also sawed at-the said mills large quantities of lumber belonging to him, Ludlam, for the sawing of which he should have accounted to the complainant; and also cut and appropriated to hiS own use ship-timber and other lumber upon the said tracts.
    That Ludlam, annually, from the time he accepted the said agency to Feb. 1839, and about the month of January in each year, exhibited to the complainant an' account of the wood and lumber cut upon the said tracts, but which the complainant has recently discovered are not correct, and do not contain ah account of all the wood and lumber cut and sold from the said tracts, and of the sawing done at the said mills, and money received by Ludlam; and, especially, that the accounts since the year 1833 contain but a small part of the wood and lumber cut and sold since that period, and which was not discovered by the complainant until about the middle of May 1839, when the complainant ascertained that large quantities of wood and lumber, without the directions of the complainant, had been cut and sold by Ludlam, and for which he had received the money and not gendered any account thereof to the complainant; and that a large quantity had been cut and unaccounted for that remained unsold.
    That, on such discovery, the complainant called on Ludlam for a further and full account of his said agency; and, after repeated applications, Ludlam, in Dec. 1839, furnished an additional account of wood and lumber sold by him in 1837,1838 and 1839, whereby it appears that 1367 cords of oak wood, 5538 cords of pine wood, not before accounted for, had been sold by him, at a price far below its value, and the money received therefor during the said years ; all which was cut without the order, direction, or knowledge of the complainant; and, after deducting all expenses, leaving a balance due the complainant of $3,105 81; but no account is given of any other kind of lumber except a few hoop poles; and no account is given of the whole amount of wood and other lumber cut upon the said premises during his agency, and particularly since 1833, which the complainant particularly requested; and, upon being called upon for further and full accounts of all wood and other lumber cut during his agency, and especially since 1833, Ludlam positively refuses to give any other account, alleging the accounts already furnished to bo full and true accounts ; whereas the complainant charges that the accounts rendered do not show or pretend to show the amount of wood and lumber cut, but contain many errors. That the said accounts show but about 15,000 cords; whereas the complainant has been informed and believes and charges that the defendant has cut, during his said agency, more than 25,000 cords of wood, besides a large quantity of ship timber, boards, plank, scantling, cedar rails, hoop poles, and other lumber.
    The bill prays an account of all the cord wook, ship timber, hoop poles, lath, boards, scantling, rails and other lumber, annually got or eat by the defendant during his agency, designating the quantity of each kind of wood and lumber, and showing how ho has disposed of it; and an account of the wood, trees, scantling, ship timber and other lumber cut by him and appropriated to his own use, and the value thereof; and an account of the quantity of lumber sawed at the mills, during his agency, out of his own timber, and what amount was sawed for other persons, and what amount was received by him ; and an account of all moneys received by him during his agency ; and that Ludlam may be decreed to pay what, upon taking the said accounts, shall be found to be due the complainant.
    The defendant answered the bill, Feb. 24th, 1841, admitting his agency of the said lands and saw-mills ; stating that there was no specific agreement as to the price he was to have for cutting ; that he was to have the market price for cutting and carting.
    He says he had directions from complainant to make sale of all wood, timber, lumber and materials upon the premises; and that he has rendered a fair and honest account of all the wood, lumber and property sold by him, from year to year, by crediting the amount and value thereof in his, the defendant’s books and has rendered the same account to the complainant at the close of every year. That he has no account of the amount of' his own timber sawed at complainant’s mills during his agency. That his timber was taken to the mills and sawed in the same-way as that of others who had sawing done there ; and he took the sawyer’s account of all sawing done at the mills ; which account included the work done for all persons who took timber there as well as the sawing done for him; and the whole was regularly accounted for with the complainant. That he cut a portion of ship timber for his own use, for which he rendered an account, but cannot state the precise amount now* He sold the frame for a sloop for about $100, which has been accounted for, and which he had a right to sell under his general instructions as agent of complainant.
    That the manner of transacting the business precludes, and has at all times prevented him from rendering any specific account of the amount of lumber, wood, hoop poles and materials cut, sawed and done for the complainant, other than the account furnished by the complainant himself. That the wood was cut and sent to the complainant in Philadelphia, and he received the corder’s bills and account of the quantity delivered; which bills specified the description, quality and number of cords ; this was the only means of ascertaining the quantity; and the complainant and he settled by the hills of the corders, and in no other way, as the books and accounts kept by the complainant will show. The practice was for the complainant to acknowledge the delivery of the wood in Philadelphia ; the number of cords-of each description was then charged to him. The same mode of proceeding was pursued in regard to the lumber, hoop poles, and whatever property wa;s sent, as the letters, receipts and papers of the complainant will show. At the close of the year these vouchers were produced, compared with the complainant’s books, and the transactions of the year settled, as far as they could be, leaving a large quantity of wood and lumber on hand.
    That in the years 1887-8 ho, having other engagements, turned over his agency to William Townsend, a highly respect, able and trustworthy person. That he informed the complainant of the employment of Townsend, and the complainant sanctioned the agency of Townshend by giving him directions from time to time, and receiving from him wood, lumber and property in the same manner as he transacted the business with the defendant ; and it was during this time that the discrepancy appears in the accounts. A large amount of wood had been cut by Townsend and not sent forward to the complainant; and when the defendant was called upon to examine the wood he estimated the quantity as near as he could, and obtained an account from Townsend which he sent to the complainant; and this defendant had no other way of rendering the said account.
    He says that all the accounts he has rendered to the complainant, both in the debt and credit, are just and true accounts and he cannot render any other. That all accounts were settled up to the year 1834. They were compared with the books of the complainant and with the vouchers of the defendant; and were, as he supposed, finally closed up and settled to the entire satisfaction of all ^parties. After the lapse of so long a time it is impossible for him to render the accounts without the aid of the complainant’s books. And although he is willing to come to an account with the complainant from the beginning of his agency if the court shall so direct, yet he insists he is not bound to render an account of his agency prior to such settlement when many of the vouchers and memoranda upon which such settlement was amicably made may be lost or destroyed, unless the complainant can show some error or fraud in the said settlement; nor has he the power to render any account other than such as have already been submitted to the complainant and which have been derived from his books as before stated.
    That he has annexed to this answer a general account made up from such materials as are in his power at the present time, and which, has been derived originally from the books, papers, vouchers and memoranda.
    He says there is a quantity of wood still upon the premises, cut under "the direction of and paid for by this defendant,and which he claims a right to charge against the complainant when the quantity shall be ascertained in the usual way. He also claims to be allowed for bad debts for property sold, for sawing, and for lumber sold, in the course of his agency, which debts are lost without any fault or neglect of his. He says he is ready and hereby submits to account with the complainant under the order of the court, when all the accounts of the complainant and this defendant can be settled upon the producing before the proper officer the books, vouchers and papers, as well of this defendant as of the complainant.
    A replication was filed.
    On the 14th of October, 1841, an order was made referring it to Richard W. Howell, a master, to take an account of all the dealings and transactions between the complainant and the defendant, and of all the wood, timber, rails, poles and lumber of every description, got, cut or sawed by the defendant or by his directions, on the said premises, and of his disposition thereof and his disbursements respecting the same, making to each party all just allowances ; and that for the better taking of the said account the said parties be examined upon interrogatories before the master, and produce all books and papers in their custody or power, relating thereto, upon oath or affirmation before the master as he shall direct; and that the parties be at liberty to apply to the court as occasion shall require, and that all further equities between the parties be reserved.
    The parties were both examined before the master upon interogatories, and witnesses were also examined before the master.
    The Master made a report, stating the account between the parties, allowing to the defendant the stipulated yearly sum of $ 150 — up to and including the year 1839, and charging the defendant with such receipts as He thought there was sufficient evidence to charge him with.
    The report was excepted toon the part of the complainant, on two grounds. First, that in view of the facts appearing in the case, showing unfaithfulness in the defendant in his said agency, no allowance should have been made to the defendant on account of such stipulated yearly sum as compensation for his agency. Second, that under the proofs in the case the Master should have made a general charge of damages against the defendant beyond the charges made against him in the report for wood and timber cut and sold and not accounted for.

      R. P. Thompson and J. Q. C. Elmer in support of the exceptions.

      Jeffers contra.
   The Chancellor.

If an agent for the performance of certain services for which a salary or yearly sum is to be allowed him, neglect to keep an account of moneys received by him in his agency, and several annual accounts are settled between him and his principal, in which considerable amounts of money previously received by him are omitted to be credited to the principal, and the omission is not supplied until the principal, in consequence of information received from others, makes inquiry of the agent in reference thereto, the salary or yearly sum for the years in which such omissions occurred should be disallowed.

Perhaps the order of reference should have directed the Master to inquire as to the faithfulness of the defendant as agent, and whether he was entitled to the salary or yearly sum or not. But that question might yet be referred. I think that the Master, on the same ground on which he disallowed the yearly compensation for 1839, should have disallowed it also for the years 1837 and 1838.

The other exception to the report is in this general form: that the Master did not charge the the defendant $25,000 or some other large sum for spoliation and waste of property committed by the defendant during his agency. The reference to the Master was to take the accounts. The Master has charged to the agent all receipts by him of which sufficient evidence was given. A general claim for damages, founded on a probability or even something stronger, that more wood must have been cut, without sufficient proof thereof to enable the Master to charge for it would not authorize a charge on the account.

The first exception is sustained.