text:
    THE ATTORNEY-GENERAL, EX RELATIONE VAN BUREN RYERSON, WILLIAM VAN HOOK, AND OTHERS, v. “THE MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK,” AND JOHN H. STEPHENS.
    1. In 1686, the proprietors of the Province of East New Jersey conveyed to four persons of the town of Newark, “ all that tract of land allotted for the burying place,” (describing it,) “to have, &c., unto the said grantees, their heirs and assigns forever, to the only use of the old settlers of said town, their heirs and assigns forever, to be and remain to and for the uses therein specified ; and to be appropriated to no other use or uses whatever.” The trustees took possession of the tract, and held it in trust for a burying-plaee; and it was so used from the date of said conveyance until 1829. In 1798, the inhabitants of Newark were incorporated, in 1804, the legislature passed an act vesting the said trust estate in the corporation, and declaring that the estate thereby vested should be appropriated and forever remain to and for the uses in the said original grant expressed, and for no other use or uses whatever In 1836, “Tlie Mayor and Common Council of the City of Newark,” by the act incorporating the freemen of Newark under that name, became, by tha provisions of said act, seized of all the lands, property, &c., of the former corporation, according to such estate and interest therein as the said former corporation had. In 1844, “The Mayor and Common Council” leased a part of the said tract, so allotted for the burying place, to J. IT. S.
    2. In 1844, an information and bill was filed, praying that the said lease may be get aside, and that the mayor and common council may be decreed to hold the said trace subject to the trusts aforesaid.

      S. The defendants pleaded, that by the fundamental constitutions for the said province, established in 1683, it was declared that 14 years’ quiet possession should give an unquestionable right to any lands, except in the case of infants, <&o.'; that the first settlers of Newark had quiet possession of the said trae! 14 years, from 1667 to 1695; that said tract was, in 1667, and from that time until 1713, in the quiet possession of the said first settlers, until they were, in 1713, by letters patent from Queen Anne, incorporated by the name of “The Trustees of the Freeholders and Inhabitants of the Township of Newark,” and that the said “The Trustees of the Freeholders,” &c., were and continued in quiet possession until 1798, when the act was passed incorporating “The Inhabitants of the Township of Newark and that the said last-mentioned corporation were in actual possession until 1836, when the act was passed incorporating “ The Mayor and Common Council of the City of Newark ;” and that the said last-mentioned corporation were then, and ever since have been in the possession of the said toot.
    4. The plea was overruled, and the defendants were ordered to answer.'
    On the 25th of December, 1844, R. P. Thompson, attorney-general, at and by the relation of Van Burén Ryerson and Williana Van Hook, and Richason Buckbee, on behalf of himself and the old settlers of Newark, their heirs and assigns, now being inhabitants of Newark, and of all persons having an interest and title in and to the public trust and uses, &c., exhibited an information and bill, setting forth that Buckbee is an inhabitant of Newark, and owner in fee of lands in Newark, and as such owner and inhabitant and assignee of the old settlers of Newark, has an interest and title in and to the said public trusts and uses set forth in the bill; and that they, the said owners, inhabitants and assigns are too numerous and too difficult to be ascertained to be made parties to this bill and information.
    That on the 1st of December, 1696, the proprietors of the Province of East Jersey, by conveyance of that date, signed by Andrew Hamilton, then governor of said province, and by the ■major part of his council, in consideration of the rents and services therein received, and other good causes and considerations, did give, grant, bargain and sell unto John Curtis, John Treat, Theophilus Pierson and Robert Young, all of the town of Newark, in the county of Essex and province aforesaid, among other lands therein described, “all that small tract allotted for the burying-place, taking in the pond and meeting-house, being seven chains in length and four chains in breadth, bounded west by John Treat, south by John Johnston’s, north and east by highways, together with all, &c., to have and to hold the said several tracts, with their appurtenances, unto the said grantees, their heirs and assigns forever, to the only proper use, benefit and behoof of the old settlers of the town of Newark aforesaid, their heirs and assigns forever, in common granted, to be and remain to and for the several uses therein particularly specified, and to be appropriated to no other use or uses whatever; to be holden in free and common socage of them, the said proprietors, their heirs and assigns forever, as of the seigniory of East Greenwich, yielding and paying therefor, unto them, the said proprietors, their heirs and assigns forever, six pence sterling money of England, for the aforesaid several tracts of land, on every five and twentieth ■day of March forever thereafter, in lieu and instead of all other services and demands whatsoever;” which instrument was immediately recorded, &c.; and in and by the said deed, all the above described premises were to be held subject to the public ase thereof by the old settlers of the town of Newark, 'their heirs and assigns, and for the pious and charitable purpose of a burying-ground, and for the interment of themselves and their respective families forever; and ought to have been, and still ought to be, devoted to the same public uses.
    That the said trustees took possession, among other lots, of the lot allotted as aforesaid for a burying-place, and held thg same in trust for the purpose in the said deed expressed, to wit for a burying-place, to the only proper use, benefit and behoof of the old settlers of the town of Newark, their heirs and assigns ; and that said lot was so used from the date of said instrument till within the last fifteen years j and that a portion of it still remains unoccupied except as such place of burial.
    That the inhabitants of Newark were incorporated by an act of the legislature passed February 21st, 1788, by the name of “ The Inhabitants of the Township of Newark in the County of Essex.”
    That on the 15th of February, 1804, all the said trustees being dead, and who the heir of the survivor of them might be, being unknown, the legislature, by an act of that date, enacted that the trust estate so vested in the said four trustees should thenceforth cease and be void, and that thenceforth the estate so vested in the said four trustees should be vested in the “ Inhabitants of the Township of Newark in the County of Essex,” as incorporated by law, and their successors forever; and they were thereby vested with the legal title to the same as fully as though they had been originally named in the said grant in the' place of the said John Curtis, John Treat, Theophilus Pier-son and Robert Young, their heirs and assigns; saving, nevertheless, the right or rights of any bona fide purchaser or purchasers for a valuable consideration without notice of the said trust of the said Curtis, Treat, Pierson and Young, their heirs and assigns; and by which act it was provided that nothing therein contained should in any way extend to or affect the parsonage lands contained in and particularly described in said grant, and also such parts of the burying-ground described in said grant as had either been leased or sold by the trustees of the First Presbyterian Church in Newark, previous to the 1st of January, 1804; and by which said act it was further enacted that the estate thereby vested in the “ Inhabitants of the Township of Newark,” as aforesaid, should be appropriated and forever remain to and for the several uses in the said original patent aforesaid expressed, and for no other use or uses whatsoever.
    That at the time when the inhabitants of Newark were incorporated as aforesaid, the said township included within its limits a larger tract of country than is now comprehended within the bounds of the city of Newark, incorporated as afterwards mentioned in the bill.
    That, from time to time, the legislature have set off portions of the township of Newark, and erected said portions into other townships, with all the privileges, advantages and authorities of townships under the act of February 1st, 1798, incorporating townships.
    That, after the setting off of said new township, the premises contained in the said trust deed were contained in the township of Newark, and that the heirs and assigns of the old settlers as aforesaid, being inhabitants of the township of Newark, were entitled to and interested in the same rights and privileges, as far as the said grant is concerned, as they before enjoyed or were entitled to.
    That the legislature, by an act of February 29th, 1836, among other things, incorporated the freemen, inhabitants within the limits of the township of Newark as then established, by the name of “ The Mayor and Common Council of the City of Newark,” and enacted that they and their successors should, by virtue of the said act, be vested with, possess and enjoy all the lands, tenements, hereditaments, property, rights, causes of action and estate whatsoever, both in law and equity, in possession, reversion or remainder, which, at the time of passing said act, were vested in or belonged to the inhabitants of the said township of Newark, in their corporate capacity, as at that time incorporated by the name of “ The Inhabitants of the Township of Newark in the County of Essex,” according to such estate and interest as the said “The Inhabitants of the Township of ^ Newark in the County of Essex,” at the time of the passage of the said act, had, or of right ought to have had, in the same. By means whereof, “The Mayor and Common Council of the City of Newark” became and were vested, in fee simple, with a'l and singular the above-described premises contained in the said trust deed, and held the same, and of right and in discharge of their duty still ought to be vested with and hold the same, subject to the public trust and uses contained and declared in .the said trust deed.
    That the said mayor and common council, by indenture of lease, dated June 30th, 1836, demised to one IT I). Chandler for the term of ten years, or thereabouts, all that lot described in a certain lease from the mayor, aldermen and common council of the city of Newark to one John H. Stephens, to wit, all those tracts, pieces or parcels of land and premises in the city of Newark (describing them).
    That the said Chandler has assigned to John H. Stephens all the rigid; and interest which he had by virtue of the said lease, and that said Stephens now holds the said above-described property by virtue of the said lease and assignment.
    That the said mayor and common council, on or about. April 12th, 1844, executed to the said John EL Stephens a further lease of the said last-mentioned tracts, pieces or parcels of land, in the words and figures following, to wit, (setting out a lease of the said parcels of land to Stephens, for twenty years from May 1st, 1846, at $55 a year rent, in quarterly payments, with the privi lege of renewals, not exceeding sixty years, on terms stated in the lease, with a covenant for quiet enjoyment for twenty years.)
    That the premises described and embraced in the said leases and assignment of lease are part and parcel of the premises described and contained in the said trust deed.
    The bill charges that the execution of the said respective leases were breaches of trust; and that the premises thereby leased were diverted from the public and sacred uses to which they were subject in the hands of the lessors, respectively, and which were impressed upon them by the founders thereof, viz., by the grantors of and in the said trust deed. That the tenure by which the said leased premises were held by the mayor and common council of Newark was a matter of common repute, well known to the inhabitants of the said city; that it was not the intention of the legislature in any wise to vary the said public uses, or to deprive the cestuis que trust of any of their equitable rights and interests in and to the said premises, and that it was not within the competency of the legislature to divest or deprive them of such rights and interests; but that the same are protected and guaranteed by the constitution of the United States; and further, that no alienation or disposition of said premises could be made so as to prejudice the said public use, or otherwise than under the sanction of this court, in case an alienation, under peculiar circumstances, should be provident and advisable; and the proceeds of such alienation should be reinvested, subject to the like uses and for the benefit of the beneficiaries thereof.
    The bill charges that the lessees knew of the public use to which the said premises were subject; that at the dates of the respective leases there were a great many graves and tombstones on the said premises, and any person buying or leasing the same was thereby put upon inquiry, and must have discovered the purposes to which the said premises were devoted as above set forth.
    The bill prays that the premises embraced in the said leases may be declared and decreed to be subject.to the public, pious and charitable use for the burial of the dead, as is set forth in the bill, and as the same was impressed upon them by the said proprietors, the founders and grantors in said trust deed; and that the beneficial rights and interest of the complainant and of those in whose behalf the bill and information are exhibited, may be confirmed and established; that said leases may be set aside and canceled, and the .mayor and common council of the city of Newark be decreed to hold the said premises subject to the trusts, rights and interests as aforesaid ; or that, if it shall appear to the court more equitable and just that the said leases should be sustained, the rents which have accrued and shall hereafter accrue, be applied to the purposes of the said trust, under a scheme to be settled by a master of this court; that all proper accounts be taken, and the defendants be restrained from all further proceedings to the prejudice of the said trusts and the interests or rights of the eestuis que trust therein, and for further relief.
    Subpoena is prayed against “ The Mayor and Common Council of the City of Newark” and John JEL Stephens.
    The bill, is sworn to by Riehason Buckbee.
    A writing is annexed to the bill, stating that Van Burén Ryerson,.one of the relators, has given bond, with satisfactory security, for the payment of costs to the obligees therein named and defendants in the bill, if any, &c,, and had delivered -the bond to the attorney-general, and that ho consents that the bill may be filed at the costs of the said relators. Signed by R. P'„ Thompson, attorney-general.
    A copy of the deed from the proprietors is annexed to th© bill.
    The defendants-put in a joint and several plea, that by the fundamental constitutions for the Province of East New Jersey, and which the defendants aver remained‘in full force as the law of the land, established, granted, and declared by the four and twenty proprietors of New Jersey, in 1683, it was, among other things, granted and declared that 14 years quiet possession should give an unquestionable right to any lands, except in case of infants, lunatics, or married women, or persons beyond sea or in prison; and they say that the complainant was not, nor were any of the persons in whose behalf the bill is filed, or under whom they claim, infants, lunatics, married women, or persons beyond sea or in prison, during more than 14 years, to wit, from 1667 to 1695, that the land and premises in the information and bill set forth were held, as the defendants aver, in quiet possession by the first settlers of the tract of land now embraced within the bounds of the city of Newark and of the land and premises in said information and bill described, being part of the same, and they aver that the said old settlers, as tenants in common, did have quiet possession of the said premises 14 years, from 1667 to 1695, that the said premises were in 1667, and from that time until 1713, in the actual quiet possession of the first settlers of Newark, as tenants in common, until the said first settlers and their descendants were, by letters patent granted by Queen Anne,dated April 27th, 1713, incorporated by the name of “ The Trustees of the Freeholders and Inhabitants of the Township of Newark,” and the said “ The Trustees, &c.,” were and continued in actual quiet possession of said land and premises from 1713 until 1798, when the said "The Trustees, &c.” were, by act of the legislature of New Jersey, passed February 21st, 1798, incorporated by the name of “ The Inhabitants of the Township of Newark, in the County of Essex;” and the said “The Inhabitants, &c.,” from February 21st, 1798, were in actual possession of the said premises until February 29th, 1836, when, by an act of the legislature of New Jersey, the said “The Inhabitants of the Township of Newark,” were incorporated by the name of “ The Mayor and Common Council of the City of Newark; ” and the said “ The Mayor, &c.,” were, on the 29th of February, 1836, and ever since have been, and still are in the possession of the said premises ; and that the defendants are advised that this suit, and every claim and demand made therein, is barred by the said article in the fundamental constitutions of New Jersey; and thereupon they plead the said article in bar, and pray judgment whether they should be compelled to make any further answer to the bill.
    The plea was set down for argument.
    No counsel appeared in support of the plea.

      W. Halsted moved to overrule the plea.
    He said that if there was anything in the provision in the fundamental constitutions for the Province of New Jersey in reference to fourteen years’ quiet possession, it did not apply to this case; for the corporation of Newark subsequently accepted the trust and continued to hold under it. But there is nothing in that provision which can affect the case. No title could be acquired against the proprietors by fourteen years’ quiet possession. The plea does not allege confirmation by the proprietors. The proprietors put down all other titles, and no other than the proprietors’ title was ever recognized in this state.
    The plea is that the first settlers held the land in question from 1667 to 1695. Now, the grant from the proprietors, in trust for a burying place, was in 1696, showing that the proprisfors did not recognize any other title. The proprietors trace title to the first founders, under the grant from the Duke of York This is the tide under which all lands are held in New Jersey; no other title is recognized in this state.
    The plea does not state under whom possession was held. It may mean under the Indian title. But our legislature, in 1703 declared all Indian titles void. 1 Allison 1.
    The plea does not answer the bill. True, the mayor and common council are in possession, but the plea does not deny that they are in possession as trustees; that is the charge in the bill. A trustee may always say he is in possession.
    Again, our legislature, by an act passed February 15th, 1804, enacted that the trust estate vested in the said four trustees, by the said conveyance from the proprietors of December 10th, 1696, should be vested in The Inhabitants of the Township of Newark, in the County of Essex ; ” and this act provides, that the estate thereby vested in “ The Inhabitants of the Township of Newark,” as aforesaid, should be appropriated and forever remain to and for the uses in the original patent aforesaid expressed, and for no other use or uses whatsoever. This act was passed on the application of “ The Inhabitants of the Township of Newark, in the County of Essex,” and was accepted by them. They are estopped.
    The plea should have been accompanied by an answer, and the answer should have denied the charge of the acceptance of the trust under the act of the legislature. Story’s JEq. Pl.} § 674.
    The plea simply says they had possession, without denying (she trust.
   The Chancellor.

The plea will be overruled, and the defendants be ordered to answer.

Order accordingly.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    SAMUEL JONES v. EBENEZER K. SHERWOOD.
    1. A tenant under a written lease for a year, after the expiration of the year, filed a bill praying the specific performance of an alleged parol agreement by the landlord for a lease for a second year, and an injunction restraining proceedings at law, instituted by the landlord, to turn him out of possession. The bill stated that the complainant could make no proof, at law, of the parol agreement, and prayed a discovery of it.
    2. The answer denied the alleged parol agreement.
    3. The injunction was dissolved, and the bill dismissed.
    4. If the answer to a bill for discovery and for injunction against proceedings at law, denies the matters of which discovery is sought, and there is no Other ground of equity jurisdiction in the case, the injunction will be dissolve^ and the bill dismissed.
    The bill states that on March 20th, 1846, the complainant entered into an agreement in writing, with the defendant, to lease from the defendant certain premises containing a grist-mill, sawmill and two dwelling-houses, for .the term of one year, from April 1st, 1846.
    That on or about March 25th, 1846, he called on the defendant and requested him to extend the term to three years, when the defendant replied that the complainant might have the premises for the term of three years from the said 1st of April, 1846, on the terms mentioned in the said lease. That the complainant then requested that an agreement in writing should be entered into to that effect, or that the said lease might be altered so as to read for three years, when the defendant replied that the complainant should have the premises for three years, and that it made no difference whether it was in writing or not. That, to the complainant’s knowledge or recollection, no person was present at the said conversation.
    That, in pursuance of said indenture and of said verbal agreement, the complainant, on or about April 1st, 1846, entered upon the premises and opened a store for the sale of merchandise, and commenced driving the mills, with the understanding and expectation that he had the privilege, by virtue of the said verbal agreement, of holding the premises for three years.
    That on the 6th January, 1847, he called on the defendant for the purpose of having the said further agreement, or some other additional agreement, reduced to writing, when the defendant, after some conversation on the subject, agreed to rent the premises to the complainant on the same terms mentioned in the indenture of lease, for one year, to oommenee on the 1st of April,
    1847. That the complainant then requested that the term might be for two years instead of one, according to the understanding and agreement made subsequent io the execution of the indenture of lease, when the defendant said he was desirous of selling the premises, and (hat, if he should receive a satisfactory offer, he would like to have the privilege of doing so, and (hat, ibr this reason, he was unwilling to lease them for two years, and at the same time the defendant urged the complainant to purchase the premises, it was, however, finally agreed and arranged between them, that the complainant should have the premises for one year from the 1st of April, 1847, on the terms mentioned in the indeni lire of lease, without reservation, and also for the year succeeding, to commence on the 1st of April,
    1848, if the defendant did not before that time sell or got an opportunity to sell the premises; and it was then also further agreed, that if the defendant, before that time, should receive an offer for the premises which he was willing to accept, the defendant was to give the complainant the refusal of the premises at the same price; that, at the time of the said last-mentioned conversation and agreement, the defendant said that he would come up to the residence of the complainant, on or about (he said 1st of April, 1847, if the weather and traveling were good, and execute the said new lease; that the complainant does not recollect or know that any person, except it be the wife of the defendant, was present or heard the conversation and agreement above set forth, on the 6th of January, or that ho can prove the same.
    That on or about March 12th, 1847, the complainant was informed by one Holden that he, Holden, had made a conditional agreement' with the defendant for the purchase of the premises, aiid was to take possession of the same on the 1st of April, 1847, and requested the complainant to give up the possession at that time.

      That the complainant, acting on the faith of the said verbal. agreement, made on said 5th of January, 1847, made his arrangements to occupy the premises and drive the mills and continue the store another year; and during the months of January and February, 1847, increased his stock of goods and merchandise, by adding thereto goods of the value of $700, and also bought about 2000 bushels of grain, of the value of $1500, a part of which grain was, by contract, not to be delivered till about the 1st of May, 1847, for the purpose of grinding the same in said grist-mill during the summer of 1847; that he has repeatedly applied to the defendant to comply with his said verbal agreement made January 6th, 1847, and execute a lease pursuant thereto.
    That the defendant, on or about the 1st of April, 1847, sent a notice to the complainant, requiring him to give up possession of the premises, and informing the complainant that his term had énded, and on or about the 10th of April, 1847, procured a summons to be issued by'Robert T. Wilson, Esq., a justice of the peace, against the complainant, under the act entitled, “ A supplement to an act concerning landlords and tenants,” passed March 4th, 1847, for that, as in said summons is alleged, the complainant holds over, and continues in possession of said premises after the expiration of his term, and after demand and notice in writing given for the delivery of the possession thereof to the defendant, which summons was returnable April 22d, 1847, and summoned the defendant forthwith to remove from the said premises, or show cause on the return day, why the possession should not be delivered to the defendant, and was served on the defendant, and returned, and that, on the return day, the proceedings thereon were adjourned to May 6th, 1847, and that the defendant threatens and intends, in violation of his said agreement, to proceed, under the said act and summons, to turn the complainant out of possession.
    That the defendant pretends that sometime in March, 1847, he received an offer from said Holden for the purchase of said premises, for $4000, and that he informed the complainant of this, and offered the premises to him for that sum, and that the complainant had refused to purchase, and that thereby all verbal agreements were abrogated ; whereas, the complainant charges that the defendant never informed him that he had been offered $4000 for the premises, and that he would sell them to the complainant for that sum, or that he, the defendant, had had any offer that he was willing to accept.
    That on or about the 19th of March, 1847, the complainant, with one Samuel Willet, called on the defendant, and the complainant then, offered to give the defendant $4000 for the premises, which sum, as it was admitted at that time by the defendant, he bad been offered and was willing to accept; when the defendant said to the complainant he would come up the next week, on Thursday, and give the complainant an answer, which he afterwards declined to do.
    The bill prays that the said verbal agreement may be specifically performed, and the defendant be decreed to execute to the complainant a lease of said premises for one year from April 1st, 1847, according to the terms of the said verbal agreement; the complainant offering to execute a counterpart thereof, and in all other respects to perform his part of the said verbal agreement; and prays an injunction against the said proceedings at law.
    The injunction prayed was allowed on the 2d of June, 1847. The defendant put in his answer.
    He admits the indenture of lease set forth in the bill. He says he has no knowledge or information, other than that received from the bill, that the complainant, after the execution of the lease and before he took possession of the premises, was dissatisfied with the terms and conditions of the lease, or that he wished to extend the time thereof.
    He denies that the complainant, on or about March 25th, 1846, or at any other time between the day of the execution of the said lease and the day when the complainant took possession of the premises, called on him and requested him to extend the said term to three years, or words to that effect, and that he then replied to the complainant by saying that he, the complainant, might have the said premises, for and upon the same rent and terms as mentioned in the said indenture, for the period of three years, commencing on the 1st of April then next, and that the complainant then requested that the defendant and the complainant should enter into an agreement in writing to that effect, or that the said indenture might be altered so as to read for the term of three years, instead of one year, when this defendant replied by saying that the complainant should have the premises for the term of three years, and it made no difference whether it was in writing or not, or words to that effect, as is untruly stated in the bill. But, on the contrary, he says that after the execution of the lease, and before the complainant took possession, he held no conversation with the complainant relative to extending the time of the said lease for the period of three years, or for any other period, or relative to altering or changing the terms and conditions of the said lease in any way or manner whatever; nor did this defendant, during that time nor since, make any agreement, verbal or otherwise, with the complainant, to extend the term of the said lease for three years or for any other period.
    He denies that he entered under the said verbal agreement as set forth in his bill, or under any other verbal agreement whatever; and he avers and charges that, on the said first of April, he delivered the possession of the premises to the complainant, and the complainant entered thereon, under and by virtue of the said indenture of lease, and for the term of one year only; and that there was no understanding or agreement between the said parties relative to extending the term for which the complainant should hold the premises beyond the time mentioned in said lease; and that the said indenture of lease was, on the day the complainant took possession, in full force and effect, not having been altered, modified or extended by any subsequent agreement or understanding between the parties thereto.
    He says that at the time of the execution of the said lease, and from that time forward, he was anxious to sell the premises, and that it was known to the complainant and the neighborhood that the property was in the market for sale; and he avers that if the complainant had applied to him to extend the time of said lease, he would have refused to do so, on the ground that it would interfere with the sale, by putting it out of his power to deliver possession at the expiratiou of the year.
    He admits that on the 6th of January, 1847, the complainant called at his house, and held a conversation with him respecting the renting or purchasing the property, but which conversation is untruly slated in the bill. He says the complainant then called on him, and said he had called for the purpose of renting the mill for another year ; that he replied, that he wished to sell the property, and had some expectations of doing so uefore the 1st of April, and would, therefore, decline renting the property at that time, and advised the complainant if he wanted die property, he had better buy it; that the complainant replied that he would rather purchase than rent, and inquired what he asked for the property, and he told him $5000. The complainant said he thought it rather too much, but said that if defendant got an offer which lie was willing to take, he wished the defendant to inform him and give him the refusal, at the price offered, which the defendant said he would do. That, as the complainant was about leaving, he again repeated that he would either purchase the property or rent it; and that he, the defendant, agaiu replied, that his object was to sell, if he could, and that he would see him again on the subject, or words to that effect. He avers that this is the true conversation, in words or effect, which then and there took place between them respecting the renting or selling the said property.
    He denies that the complainant, when he called, as aforesaid, and had said conversation with the defendant, stated or intimated to the defendant that he had called for the purpose uf having the said further agreement, or some other additional agreement reduced to writing, for the better security and safety of the complainant, or words to that effect. He also denies that he, then and there, or at any other time before or since, agreed and consented to rent the premises to the complainant upon the same terms and conditions as mentioned in the then subsisting lease, for and during the term of one year, to commence on the 1st of April then next, or upon any other terms and conditions, or for any other term; but, on the contrary, he then and there declined to make any agreement with the complainant relative to the renting the said property, as hereinabove stated. i
    He also denies that the complainant then and there requested !> iie said térro might be extended for two years, instead of one, according to an understanding and agreement made subsequent to the execution of said indenture of lease j on the contrary, he says the complainant did not, on that occasion, mention or refer to any understanding or agreement made subsequent to the execution of the said lease; nor did he claim or pretend to have any right to hold the premises beyond the term specified in said indenture or lease.
    He also denies that it was then and there, or at any otheij time or place, finally agreed and arranged between them, that the complainant should have the premises, upon the terms and for the consideration and rent mentioned in the then subsisting lease, for and during the term of one year from the 1st of April then next, without reservation, and also for the year succeeding that, to commence on the 1st of April, 1848, provided he, the defendant, did not before that time sell or get an opportunity to sell the premises; but, on the contrary, he says that no agreement whatever was then and there made between them, relative to the renting or leasing the property for any time, or upon any conditions whatever; neither was there any agreement or arrangement whatever between them relative to the sale of the property, except the voluntary promise of the defendant, in case he had an offer for the property, to give the complainant the refusal, as before stated.
    He denies that he did then and there, or at any other time, declare that he would come up to the residence of the complainant, on or about the 1st of April, 1847, if the weather and traveling were good, and sign and execute a new lease, or make any other declaration of the like kind or nature.
    He says that, on or about March 11th, 1847, one Jos. A. Holden, who lived 25 miles from the mill property, called on him and said he was in search of mill property, and, having understood that the defendant’s property was for sale, he had been to look at it, and wished to know what he asked for it. Thif, defendant told him it was for sale, and asked him $5000 for it. Said Holden offered $4000, and he finally agreed to sell it to. Holden for that sum ; and he and Holden then agreed on the terms and conditions of the sale. That Holden then proposed that articles should then be drawn and signed, when he, recolfooting that he had given his word to the complainant to give him the refusal, stated the fact to Holden, and requested a postponement until he could give the complainant the refusal; that to this Holden assented, and it was then and there agreed between this defendant and Holden, that he, the defendant, would, the next day, March 12th, 1847, send his two sons, William and Augustus, (defendant being prevented from going by lameness,) with full power and instructions to inform the complainant of the price which had been offered for the property, as aforesaid, and that the complainant could have the property for the said sum of $4000; and if the complainant refused or declined the purchase, then the said Augustus, as the attorney-in-fact of this defendant, would enter into articles with Holden to convey the property to him, for .the sum and on the terms and conditions which -had been verbally agreed upon and settled between this defendant and Holden, as aforesaid; and Holden agreed to meet the said sons of the defendant at German Valley, where the property is situated, on the said 12th of March, for the purpose aforesaid.
    He says that, though not bound to give the complainant the refusal, the promise todo so being verbal and without consideration, yet, being willing to keep his word, he did, on the said 12th of March, send his son to German Valley, with full authority and instructions as aforesaid, and for the purposes aforesaid; and that his son William did, on that day, call on the complainant, on the property, and told him he had been sent by his father to inform him -that this defendant had an offer for the properly, that Mr. Holden had agreed to give $4000 for it, and that the complainant could have it for that price, if he wished it, and if not, they would sell it to Holden, to which the complainant, at first, replied that he would give as much as any man intended to pay for the property, and then said that if Holden had offered that sum, he, the complainant, would not make any offer.
    That on the defendant’s declining to purchase, afterwards, on the said 12th of March, his said son, as the attorney-in-fact of this defendant, entered into certain articles of agreement with said Holden, under their respective hands and seals, whereby this defendant, for $4000 to be paid in three equal payments, the first to be made on the 1st of April then next, and the others in one and two years thereafter, agreed to convey the property, by warrantee deed, to Holden, on or before the 1st of April then next, with a covenant that Holden should and might take possession on the said 1st of April; and the parties to the said agreement bound themselves for its performance in the penalty of $500.
    That on the said 1st of April, Holden tendered himself ready, &c.
    He denies that the complainant did, at any time, by himself or his agents, apply to him to comply with the said pretended verbal agreement, and to execute to him a lease pursuant to the said verbal agreement, alleged by the complainant to have been made on the 6th of January, as is untruly stated in tlie bill; and he avers and charges, that from the said 6th of January until the defendant agreed to sell to Holden, the complainant did not claim, set up or pretend to the knowledge or belief of the defendant, that there was any such agreement or agreements as he has set forth in his bill; neither has the complainant, since he was informed of the agreement to sell to Holden, requested him to comply with any such verbal agreement, or offer to comply with it on his part; but, on the contrary, in all their communications since that time, the complainant has urged and requested him to annul his said agreement with Holden, and to sell the property to him, the complainant.
    On this answer, a motion was made to dissolve the injunction.

      J. W. Miller, for the motion.
    He cited 2 Green’s Ch. 429 ; 3 Ib. 434, 446; 1 John. Ch. 211; 1 Halst. Dig. 536; Cooper’s Eq. Pl. 315, 316; 3 Bro. Ch. 205; 1 Saxton 428, 476, 488.

      J. S. Hager, contra.

    He cited Story’s Eq. Pl., § 35,852—3—4; 3 Green’s Ch. 553.
   The Chancellor.

The complainant, by the bill, alleges a parol agreement for a lease for a second year, and states that? be cannot defend himself against the defendant’s proceedings at law to turn him out of possession, because he has no proof of the parol agreement. He, therefore, by bill in this court, calls upon the defendant to discover the parol agreement; and prays that the defendant may be decreed to perform the same, by executing a lease to him for the second year; and prays an injunction, in the meantime, against the defendant’s proceeding at law to turn him out of possession.

The defendant, by his answer, denies that he ever made the alleged parol agreement.

If the complainant had proof of a parol lease for a second year, he could defend at law. Having none, he came here, by bill, for discovery, and fails to obtain it. It is manifest that this court’s jurisdiction of the case is at an end.

The injunction will be dissolved, and the bill dismissed.

Order accordingly.


text:
    ANDREW GARROCH v. ALVAH SHERMAN AND JAMES P. JUDSON.
    1. A bond, and a mortgage showing on its face that it was given to secure the payment of the bond, were executed. The mortgage came into the possession of the person named therein as mortgagee, he having given no consideration. The bond was never delivered. The person named as mortgagee assigned the mortgage to one who testified that he advanced no money on the faith of it, and he assigned it to the complainant, who, on taking the assignment of the mortgage, gave a writing under his hand and seal, that, in consideration of the assignment, he agreed to pay certain notes drawn and endorsed by the person named as mortgagee, and to cancel certain claims then in his hands against the person named as mortgagee.
    2. Under the pleadings and proofs, the bill to foreclose the mortgage was dismissed.
    3. A mortgage purporting to secure a bond is not good without the bond, unless it be made to appear that the person named as mortgagee is entitled to the possession of the bond. And a person coming into possession of the mortgage by assignment from him who is named as mortgagee, stands in no better position.

      The bill states that Alvah Sherman was indebted to Isaac Watkins in $1500, and to secure the same, made out and signed his bond to Watkins for that sum, but never delivered the bond, under the pretence that it was unnecessary, as the mortgage (afterwards mentioned in the bill,) would be sufficient without the bond, and that if the bond should be wanted he would deliver it.
    The bill then states that Sherman, to secure the said $1500, executed and delivered to Watkins a mortgage, (setting out the mortgage.)
    It then states an assignment of the mortgage by Watkins to one Eadie, and an assignment thereof by Eadie to Andrew Garroch, the complainant.
    It then states that the records of deeds show the title to the mortgaged premises to be in James P. Judson, and charges that, before the making of the mortgage, Judson had conveyed the premises to Sherman, and that after the making of the mortgage, Sherman had re-conveyed to Judson. Sherman and Judson are made defendants.
    The bill prays that Sherman may be decreed to deliver to the complainant the bond secured by the mortgage, and prays foreclosure, and a sale of the mortgaged premises.
    Sherman, in his answer, denies that he was indebted to Watkins, and says that the said writings were executed by him for the purpose of obtaining a loan for his own use; and that, on the assurance of Watkins that he could obtain the loan for him, he handed to Watkins the writing purporting to be a mortgage, for the sole purpose of enabling Watkins to show the nature and value of the security that would be given for the loan, and that no loan was ever effected.
    Sherman also denies, and so does Judson, in his answer, the conveyance and re-conveyance between them charged in the bill.
    The testimony, so far as it is important in reference to the points decided, is as follows :
    Samuel H. Gardner, sworn for the complainant. — I am a subscribing witness to the mortgage; I saw Sherman and his wife execute it; I was then a commissioner for taking the proof and acknowledgment of deeds; I think I saw a bond accompanying the mortgage, which was acknowledged before me at the same time the mortgage was; I think. I was the subscribing witness to it at the same time I subscribed the mortgage as a witness ; it was my understanding that the bond was the bond secured by the mortgage; the bond and mortgage were acknowledged at Sherman’s house, and I left them with him.
    (The bond, or paper purporting to be a bond, being produced, it appears there is no subscribing witness to it.
    Caleb B. Headley, for complainant. — There has been a conversation between Sherman and me, about his borrowing some money of me; I cannot say there has directly ; there has been a considerable conversation between Watkins, Sherman, and me about borrowing money; the first sum named was $3500; I think $1500 was also named ; I don’t think I can tell with any certainty when it was ; my impression is it was in the spring, or fore part of summer, of 1844; a mortgage was proposed to be given to ine as security for the money, by Mr. Watkins, on Sherman’s property ; named two pieces of property for the purpose ; I preferred the mortgage on 24 acres of land; there was some difficulty, I don’t know what; and they proposed a mortgage on the house and lot described in the mortgage in controversy in this suit; I should say Watkins proposed it; I do not recollect of Sherman and Watkins talking together with me at any one particular time; Watkins did the most of the business; I had some conversation with Sherman ; I do not know that he ever proposed to give a mortgage on the property in question ; 1 think it likely Sherman and I had some conversation on the subject; but I cannot remember anything definite about it; I was notified that the mortgage was ready, and I requested that they should satisfy a friend of mine and a lawyer he should choose, that the mortgage was clear, and the money should be forthcoming; and that was the last I heard from them ; the money was not coming from me, but through me; I would not like to say positive who it was said the mortgage was ready, whether Sherman or Watkins ; I am under the impression that both of them said so ; the money I said would be forthcoming was $1500 ; during this negotiation, my impression is I had some conversation with Sherman on the subject, but I am not certain; I don’t recollect anything was said about J. P. Judson in this affair; I don’t recollect that I ever talked with him about this property or the mortgage up to yesterday; in this negotiation Sherman was said to be the owner of the land ; I so understood from Sherman, or Watkins, or both; I understood, at the time, that Watkins was to get the mortgage of Sherman and sign it over to my friend ; how it was to be done, I did not understand ; I don’t remember anything positive as to Sherman’s trying to persuade me to take that mortgage; I never heard that there was anything done by my friend or the attorney to satisfy them on the subject; I don’t know how to answer, satisfactorily to myself, whether from my conversation with Sherman I was led to believe the mortgage was a good one; there was a number of circumstances all tending to satisfy me that the mortgage was a good one; but whether I got it from one or the other I cannot say ; my own knowledge of the property was evidence to me that it was sufficient if it was clear ; I cannot say for a certainty whether Sherman, in his conversations with me, ever said he was not the owner of the property; this mortgage, as I understood, was to be made by Sherman; I understood it that this loan was to be made provided they satisfied my friend and his lawyer.
    Cross-examined. — I do not recollect what time it was that I was given to understand the mortgage was ready for $1500; I should not think that from the time Watkins first applied to me for the money, it was more than. four, five, or six weeks before the matter was at an end ; I think I have seen both Watkins and Sherman together, talking on the subject, but what was said I cannot remember; when the loan of $3500 was spoken of, Watkins was to give a mortgage on his own place; he was to pay off a mortgage on his own place out of it, and give a mortgage for $3500, clear; I do not know that Sherman was to have any share in that loan; I never heard him say he was ; with the $3500 to be lent to Watkins, he was first to pay off the $1700 mortgage on his own place, and for the rest he said he had got into difficulty and must have the money ;. Watkins, before 'the last year was in embarrassed circumstances, as he said ; I do not know what his pecuniary situation now is.

      In chief. — Watkins stated to me that he had endorsed paper for Sherman; that the paper had fallen due, and it was necessary, to save his goods and chattels, to raise the money.
    This is the plea he made for the want of the money; I understood that both Watkins and Sherman wanted money at the time; I should think it was the general opinion at that time that Sherman was in embarrassed circumstances.
    John Eadie, for complainant. — The mortgage was assigned to me by Watkins; I was present when he executed the assignment ; Cass, one of the subscribing witnesses to the assignment, was serving with me; Smith, the other subscribing witness, was serving with Watkins; they were laboring men; I saw them witness it; Smith is in Galveston, Texas; Cass, I believe, is living near Camptown ; Watkins made the application to me to take the assignment of the mortgage — to discount it; I refused; this was in the fore end of May, 1844; it was a long while after that that I agreed to take it; it was in January, 1845, before I agreed to take it; it was not offered to me again until then; the consideration of the assignment to me was, Watkins was indebted to me much more than the face of the mortgage, for moneys advanced to him ; Watkins lived next door to me, and Sherman also, one on each side of me; I had a conversation with Sherman about this mortgage, about a week, or perhaps only three or four days after it was offered to me; I. believe he asked me why I had not taken the mortgage; that it was a good one, and that I never had better paper of the kind; I refused to have anything to do with it, stating that I had not money at the time convenient, and that I did not like the paper; I think he observed in this way, that Watkins and him had got into difficulty on account of some notes that was passing betwixt them; that he, Sherman, wished to raise money in order to pay off these notes or judgments; that he did not wish Watkins’ property to be touched on his account; that is all that passed betwixt ns, that I recollect, in 1844; I think, in the course of the conversation, he stated that they had got into difficulty and there were notes betwixt them, and judgments pending against them both upon them ; I had no further conversation with Sherman on the subject, that I recollect, until the mortgage was assigned to me j when I took the asignment of the mortgage, I considered it a valid mortgage'; the other assignment on the mortgage is signed by me; I made the assignment to Mr. Garroch; the subscribing witness is the same man, Smith, who witnessed the other .assignment, and is now in Texas; the circumstances of this mortgage being assigned to me are these: Watkins got indebted to me pretty heavy; I pressed him for more securities than what I had, to make me safe; he said he had done all to secure me that he could, that mortgage of Sherman’s excepted; I observed to him that I would take an assignment of that; the assignment was made, in the form and at the time it appears on its face; between the time Watkins first offered me this mortgage and the time I took it, I advanced to Watkins, at one time, $2100 in cash, besides $1500 of an old mortgage that was pressing upon him, and another $1000 for which I took a mortgage on his place, making in all $4600; this is all I advanced him betwixt those two intervals; the $1000, I believe, was used for the purpose of taking up executions against him. (This was objected to by defendant’s counsel.)
    The question being put, “ Did you understand, at the time, that the advancement of this money was to relieve Watkins from executions that were against him on Sherman’s account?” the question was objected to.
    The master overruled the objection and the witness answered; I was informed by Watkins and Mr. Frelinghuysen, his attorney, that such was the case. (The answer was objected to.)
    The circumstances of making the. assignment by me to Garroch were these: Mrs. Watkins called on me and wished to know if I would not assign over that mortgage of $1500, in behalf of Enos Baldwin, William Ashley and Andrew Garroch; she showed me a title she had for some little property in Scotland, and offered to assign that over to me if I would assign that mortgage to those persons, and I agreed to it, for to cover notes they had endorsed for Watkins, I believe to the amount stated in that paper gived by Garroch to me; the proposal was made, unknown' to. Watkins, wholly on the part of his wife; as far as I know, he agreed to it; I don’t know that he and I had any conversation about it at the time; he never made any objection to it that I ever heard of; I am from Scotland ; I understood where the property lay, but not much about it; Watkins is from Setotland also ; in pursuance of that arrangement I made that assignment on the mortgage; at the time of that assignment, Garroeh gave me back a writing, a copy of which has been exhibited on the part of the complainant; the original I have io my possession; at the time of making the assignment to Garroeh, I considered it a good mortgage ; I think likely I told Garroeh so ; I don’t think Sherman ever told me the mortgage was not a good mortgage until after I had assigned it to Garroeh; sometime in the spring of 1845, after Sherman had returned from the legislature, and aft,or I had assigned it to Garroeh, Sherman told me the mortgage was good for nothing.
    Cross-examined.' — On the 8th or 9tn of May, when Watkins first applied to me to discount the mortgage, 1 saw it and read it; I did not see any bond accompanying it; I made no inquiry for it; I notice that the condition of the mortgage called for a bond ; the loan to Watkins of $2100 was made in New York, on the security of his own note and an old note for that amount which was taken up by Watkins, in the City Bank, under protest; Watkins was endorser on this old note, for some friends in Rhode Island or Connecticut; I don’t remember where that old note was dated ; I gave it up to Watkins when I got a deed for his property; this loan was made, as far as my memory serves me, from the 1st to the 10th of July, 1844; it was for 80 days; the new note was payable in 30 days, I think; it was not paid when it fell due; it was not lodged for collection; when it fell due I did not take any further security until I got a deed for his property; the advance of $1500 was made in May previous; that was made for the lifting of an old mortgage that was foreclosing against him, which was assigned to me; (his was in the fore end of May, 1844; there was no bond accompanying this old mortgage, but I got a new bond from Watkins alone ; this bond has been paid, so far as I have got a deed for his property; the $1000 loan was made in the same month of May, after the application by Watkins to discount the mortgage in question; I am not sure whether the $1500 was lifted before or after he applied to me to discount the mortgage in question in this suit; the $1000 was advanced after that application ; I took a bond and mortgage on the whole of Watkins’ farm as security for this $1000; this money, I understood, went into the hands of Fred. T. Frelinghuysen, to pay judgments on endorsements by Watkins and Sherman; but whose debts they were I know nothing about it; that is what I meant in my direct examination; I never advanced a dollar on the faith of the assignment by Watkins to me of the mortgage in question; I received the deed from Watkins for his farm in August, 1844 — the 24th, I think ; it was not acknowledged when I first received it; it was acknowledged about February 1st, 1845, and at that time Watkins was indebted to me $5800; Mrs. Watkins never acknowledged the deed — she signed it, but never would acknowledge it; the deed was delivered to me at the time of its date, and remained in my possession from that time till the said 1st of February, Í845; a bill of sale was made by Watkins to me, about the time of the date of the deed, of all his personal property; an estimate was made of its value at the time, and the property was delivered; it was taken as collateral security; I do not remember the amount; the deed was not a collateral security — that was a sale ; the price of the whole property was $5800 ; it was sold to me out and out, bona fide, for that price; there was an encumbrance on the property of $300 a year; the thing was fairly finished on or about February 1st, 1845; the deed was made in August preceding, but the bill of sale was not made, I think, till February ; it may have been made in August; the $5800 was for the whole property, real and personal; the personal property remained as a collateral security until on-or about February 1st, 1844, when it was turned over to me absolutely; I do not recollect what was the consideration of the real estate ; the two was connected together, and amounted to $5800, but I do not recollect what each was valued at by itself; I have advanced no money to Watkins since that time; there is some rent and other small matters due to me ; rent, $150, and 10 per cent, on the value of the personal property; the assignment to Garroch was made just about the same time I finished up a settlement with Watkins, in February, 1845; they were both done about the 1st of February; but they were distinct transactions, each one by itself, and were not connected together; I took Mrs. Watkins’ statement as to the value of the property in Scotland; I knew something of its value from knowing where it was situated ; from what I understood, I estimated the value of it to something like from two to two hundred and fifty pounds sterling; she had the copy of a will of her uncle, willing it to her and a couple of her sisters, and she gave me a power of attorney to get it; Watkins never signed it; there was never any occasion for it; it had never come into her hands; I hold that power of attorney, so that, provided I cannot sell the property here to cover me, I may be safe to the amount due me ; I bought the real estate and personal property at an out and out sale for $5800; there is no time limited in which I am to sell the property here; I may sell it now, or I may sell it in 100 years if I choose; there was no bond accompanying the mortgage in question in this suit, when it was assigned to me; I never saw any until I saw it here today. [An interlineation in the assignment from Watkins to the witness, in these words, “ and the bond therein mentioned and all moneys secured by the said mortgage,” being shown to the witness, he says] — I think Watkins made the interlineation; but I do not know; it was made at the time it was signed, as far as I know; I do not know who wrote with a pencil first, under the interlineation; I think it was done at the same time the body was wrote, but I cannot remember particularly; I cannot say when it was done; I have no recollection of it; the assignment from me to Garroch, I presume, is in Mr. Boylan’s handwriting; the other is not; I don’t think he ever saw it before"the execution of the assignment from me to Garroch ; it was not out of my possession till then ; the assignment from Watkins to me was made, I suppose, in my own house. [An interlineation in the other assignment being shown to witness, and he being asked when it was made, he says] — I don’t recollect when the interlineations were made; I have no recollection about them; if my attention had not been called to them now, I should not have known they ever were made; I knew there was no bond with the mortgage when I took the assignment from Watkins ; I never looked for one; I did not consider the bond of much worth, & mere personal thing; I never applied to Sherman for the bond, nor ever asked him why one was not delivered; I cannot say that I said anything to Garroeh about the bond when I assigned the mortgage to him; he must have seen there was none; I negotiated the assignment to Garroeh, and the terms of it, at Mrs. Watkins’ request; Watkins gave his consent to it; X' believe all the terms of that assignment were made between me and Garroeh.
    The question being put “ I want you to state distinctly and fully the terms on which Garroeh holds the mortgage,” the complainant’s counsel objected to the question, and to any evidence as to the terms on which Garroeh holds the mortgage, except as they appear by the-written agreement. The master overruled the objection, and the witness answered:
    The terms specified in the paper was agreed upon betwixt him and me, and the money to be paid over to the separate parties, as soon as collected; that is the whole sum and substance of the business ; I do not recollect of any conversation in the fall of 1844, between Sherman and me, in reference to the state of accounts between Watkins and Sherman, in connection with that mortgage; there was a settlement of accounts between me and Sherman that fall; I think we did not at that time, to my knowledge, have any conversation about the state of accounts between him and Watkins in relation to that mortgage; Xdid once make an effort, at Sherman’s request, to get a settlement between him and Watkins; this was, to the best of my recollection, early dn the spring of 1844; it was before the application was made to me to discount the mortgage, a long time, according to the best of my recollection; Sherman at that time made no mention of the mortgage in question ; I heard something of an effort made by Sherman to raise money in New York; I think he mentioned it to me himself, but when it was, I cannot recollect; he said a dark cloud was hanging over him, and he must raise money to get it off; I understood he proposed to give a mortgage on the property and buildings where he lives now; before any suit was brought by Garroeh, on this mortgage, he and I called on Gov. Pennington, with the papers, and showed him the assignments on the mortgage; Gov. Pennington observed that the words interlined in the assignment were wanting, and he said if I would leave them with him, he would make them as they should be, and would send them up to me, to be executed by Watkins and myself over again; the mortgage was sent to me with the interlineations in pencil-marks, and Watkins filled up the interlineation in his assignment, in presence of the said attesting witness, James Smith, and I filled up mine in presence of the same witness, who then, for the first time, signed his name as a subscribing witness to the said assignments ¡ this has come to my recollection since my previous examination, and on a conversation with Gov. Pennington; the assignments were re-acknowledged by Watkins and myself, at that time, in presence of that witness; this was done when Garroch applied to Gov. Pennington to prosecute the mortgage in question, but before this suit was brought thereon; I think it was within eight or ten days after the assignment to Garroch ; I held the mortgage in question at the time of assigning it to Garroch, on account of a debt owed by Watkins to me for money lent and advanced; I don’t recollect stating to Garroch anything to the effect that the mortgage was doubtful, or an invalid security • I do not recollect that I gave him (Garroch) any intimation in the negotiation with him in reference to this mortgage, that there was any difficulty about it, for I had no such idea myself j I represented it to Garroch as a good and valid mortgage ,• at our first interview with Gov. Pennington, wo left the mortgage with him ; I believe I received it again from Gov. Pennington’s hands, at my house, a very short time- — one, two, perhaps five days — -after we left it with him; he said he was going further, and would call in the evening, on his return, and get it, which he did; I remember having conversations with Sherman — -it strikes me it was in the spring of 1844 — in relation to a settlement of accounts between him and Watkins; this was before the settlement of accounts between me and Sherman — some time before his offering to me the mortgage for discount — as I have before stated; I don’t think I was informed by Sherman, at that time — the time of these conversations — that he owed Watkins nothing.
    In chief. — Cass was not present when the assignments were re-acknowledged; I now affirm and approve the assignment by me as it now stands; I knew, before taking the mortgage in question, that Sherman and Watkins had had dealings and accounts together; they both told me so; Sherman has been engaged in business in that neighborhood ever since I have known him; I can’t say that I knew that Watkins was doing any business; I had no knowledge of any business of his, except what he told me himself; he lived in Camptown for five or six years — was on a farm he purchased there; I believe his principal business was signing accommodation bills and borrowing money.
    Re-cross-examined. — I came to Camptown May 29th, 1843; the first money I advanced was that for lifting the $1500 mortgage which I spoke of before; I do not recollect of his applying to me for any amount before that; I may have let him have a few dollars; it was at the time of advancing money for that mortgage, which was foreclosing at the time, that I first learned that Watkins was in failing circumstances; it was public rumor that he had erected large improvements on the property he occupied ; I have no knowledge of it myself.
    After the closing and signing of Eadie’s examination, the defendant’s counsel objected to the admissibility of his testimony, on the ground that it appears, on the face of the testimony given by him, that he is interested in the event of the cause.
    The testimony on the part of the defendants, so far as it relates to the points decided, is as follows:
    Abraham H. Sherman. — I have seen the bond and mortgage exhibited in this cause; in the latter part of May or 1st of June, 1844,1 know of the said mortgage being in the possession of A. Sherman; I think, certainly, it was the last week in May.
    Mary C. Sherman, aged sixteen years. — I remember seeing Mr. Samuel H. Gardner at my father’s house in May, 1844; I am a daughter of A. Sherman; I was in the store when Gardner called; he inquired for my mother; he came alone; I invited him into the room, and called my mother; he remained about five minutes; he came to leave a mortgage; I saw the mortgage; it was on the premises where the store is; I saw the mortgage a number of times during the summer and fall of 1844; can’t say how late in the fall; think, it was September; the mortgage was from my father and mother to Mr. Watkins, for $1500; my father had gone to New York when Gardner sailed; the mortgage was in father’s secretary when I saw it in the summer and fall of 1844; I do not know the form of taking an acknowledgment; I understood that Gardner had taken the acknowledgment at that time; Judson was not there at that time ; I did not see him there during that day ; I fix the month of May as the time of taking the acknowledgment of my mother because I was then assisting in the store; I had never seen the mortgage before then; I remember the paper marked Exhibit P No.,4, (the bond,) as one of the papers Mr. Gardner had, and remember the similarity in the blotting on the bond and mortgage.
    Cross-examined. — Mr. Gardner carne about ten in the morning ; my father started for New York about 8 or 9 that morning ; I can’t say how he went; in going to New York he would go near Mr. Gardner’s house; I made no memorandum of the time spoken of; my mother and Mr. Gardner retired to another room.
    William W. Sherman, son of defendant, A. Sherman. (The mortgage in dispute being shown him.) — I have seen this paper before to-day and subsequent to the day it bears date ; I saw it at our place several times during the summer of 1844, and along iti the fall of the same year, at the same place; I saw it five or six times; I recollect seeing it late in the fall, in my father’s desk — what they call the secretary ; my sister Mary was with me when I saw it in the desk ; we were looking at the contents of the paper together at that time ; I saw it several times in the desk besides; I heard a conversation between my father and Mr. Isaac Watkins respecting the mortgage and the purpose for which it was given; it was along in the summer of 1844, as late as June or July, and while the mortgage was yet in the secretary; it was stated in the conversation, that the object of the mortgage was to raise a fund for father’s benefit, and Wat- , kins said he thought at the time he would be able to raise the money for him ; I know of an effort made by Mr. Watkins for that purpose; he said he had gone to Westfield to see if he •could not raise it from a gentleman there, but he said he could not get it there; he said he would go to see Mr. Headley, to see if he, Headley, could not get it from a lady; I heard him say afterwards that he could not get it there; it was along in June, 1844, that he went to see Mr. Headley, or said that he went. (So much of the above testimony as has relation to the conversation between Sherman and Watkins was objected to by complainant’s counsel.)
    Cross-examined. — The latest date I can fix, with certainty, as to the time when I saw the mortgage in my father’s possession, was along in September, 1844; it was prior to this date that Watkins made the efforts referred to to get the money; Watkins did not take the mortgage with him when he went to raise the money ; can’t say whether there were any assignments on the mortgage at that time or not; my father and Watkins were friends at that time — prior to that time they had considerable dealings together ; I know that, prior to that time, Mr. Watkins had endorsed for my father a few hundred dollars; I should say ten or twelve hundred dollars; I am a son of A. Sherman,
    In chief. — The endorsements spoken of were for the firm of C. A. Sherman & Co., composed of Alvah Sherman and his son, Charles A. Sherman; I should not think the endorsements were over $1000, but I hav.e no memorandum of them.
    An instrument under the hand and seal of Garroch, of which the following is a copy, was produced on the part of the complainant : “ Whereas John Eadie has this day assigned to me a mortgage made by Alvah Sherman and wife for fifteen hundred dollars. In consideration whereof I do agree to pay the face of the following notes, to wit, one note of $400, drawn by Isaac Watkins, and endorsed by Enos Baldwin ; one do., of $310, drawn by Isaac Watkins, and'endorsed by Enos Baldwin ; one do., of $420, drawn by Wm. Ashley, and endorsed by Isaac Watkins and Enos Baldwin; and I further agree to give up and cancel claims now in my hands against Isaac Watkins and Enos Baldwin, which claims amount to $345. In witness whereof I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, and dated this first day of February, in the year of our Lord one thousand eight hundred and forty-five. Signed, A. Garroch. [L. S.]
    “ Sealed and delivered in the presence of Aaron A. Boylan.”

      F. T. Frelinghuysen and W Pennington, for the complainant.
    They cited 4 Kent’s Com. 145 ; 2 Story’s Eq., §§ 145, 1018 , 1 Ib., §§ 381, 389.

      A. C. M. Pennington and A. Whitehead, for the defendants.
    They cited 1 Johns. Ch. R. 499 ; 2 Atk. 19 ; 1 Bro. Ch. 52.
   The Chancellor.

The answer of Sherman has not been overcome'] and there is no proof that Sherman was indebted to Watkins, or that Watkins, either before or since the writing purporting to be a mortgage came into his possession, paid any of Ms endorsements for Sherman, or paid money for him in any other way.

Watkins could not have foreclosed the mortgage, (it purporting to secure a bond,) without producing the bond, unless he could show that he was entitled to the possession of the bond. No reason or consideration has been shown why the bond should have been delivered to Watkins.

Eadie, who took from Watkins an assignment of the mortgage, admits that he advanced no money on the faith of it.

If the assignment by Eadie to Garroch, the complainant, could put Garroeli in any better position than Watkins or Eadie occupied, and if, from the testimony, I could feel well assured that the assignment to Garroch was a bona fide transaction, yet the fact that the mortgage showed on its face, that it was intended to secure a bond was sufficient to put him on inquiry in reference to the bond, and he, therefore, took the mortgage subject to every defence that could be made against it as between Sherman and Watkins.

The bill will be dismissed.

Order accordingly.