source: Caselaw Access Project

author: The Ordinary.

license: Public Domain

text:
    Mary McDonald, Appellant, and James McD. Hutton, administrator, &c. of James McDonald, deceased, respondent, on appeal from the Orphans’ Court of Hudson county.
    An administrator, on an application to the Orphans’ Court for an order to sell lands to pay debts, exhibited to the said Court only an account of the debts; and the said Court, on the same day, made an order for the sale of lands; and the administrator made sale, and made report of the sale, to the said Court; and on exceptions to the report of sale, the said Court confirmed the sale, and ordered that a deed be given. Held, on appeal, that the proceedings wore irregalar.

      Held, further, That the objection that the appellant did not proye, before the Orphans’ Court, that she was an heir at law, could not prevail on the appeal, the appellant, in the proceedings before the Orphans’ Court called a daughter of the decedent, having been permitted by that Court to file exceptions to the report of sale, and no objection having been made to the hearing of the exceptions on the ground that she had not proved herself to be an heir-at-law.
    The facts are sufficiently stated in the opinion of the Ordinary.

      R. Adrian for the appellant.
    He cited Rev. Stat. 665, 667; 4 Halst. Rep. 338; 6 Ib. 341; 3 Harr. Rep. 77; Spencer's Rep. 52.

      A. O. Zabriskie for the respondent.
   The Ordinary.

The Statute, Revised Statutes, 664, sec. 15, provides, that when an executor or administrator shall discover or believe that the personal estate of the decedent is insufficient to pay his debts, he shall make and exhibit, under oath, to the Orphans’ Court a just and true account of the said personal estate and debts, as far as he can discover the same; and the said Court shall thereupon make an order directing all persons interested in the lands of the estate to appear before them at a certain day and place in the order mentioned, not less than two months after the day of making such order, to show cause why so much of the lands of the decedent should not be sold as will be sufficient to pay his debts; which order shall be set up &c., and published in a newspaper for six weeks successively.

Sec.' 16 provides, that the said Orphans’ Court shall, at the time and place mentioned in the said order, hear and examine the allegations and proofs of the executor or administrator and other persons interested ; and if, on full examination, the said Court shall find that the personal estate of the decedent is not sufficient to pay his debts, the said Court shall order and direct the executor or administrator to sell, &c.

In the case now here on appeal, the administrator, on the 20th of November, 1848, exhibited to the Orphans’ Court of Hudson, not on account of the personal estate and debts, as required by the said 15th section, but simply an account of the debts of the estate. And thereupon, on the same 20th of November, 1848, the said Orphans’ Court made, not an order directing all persons interested in the lands to appear before the Court, two months thereafter, to show cause why lands should not be sold to pay debts, as provided in the same 15th section, but an order at once directing the administrator to sell so much of the lands of the decedent as would &c. And on this order, the administrator actually sold all the lands of the decedent, on the 22d of January, 1849. And, on the 19th of February, 1849, the report of the administrator that he had made such sale was filed with the Surrogate; and, on the same 19th of February, 1849, the said Court made an order confirming said sale, and directed the administrator to execute a deed to the purchaser.

From this order an appeal is taken to this Court.

There can be no doubt that the whole proceeding is erroneous' and must be set aside.

The only answer which the respondent in this appeal gives is, that the appellant did not prove herself, before the Orphans’ Court, to be an heir-at-law, and that therefore he, the respondent, is not bound to make further answer to the petition of appeal.

This cannot avail the respondent. The appellant, in the proceedings before the Orphans’ Court, and therein called a daughter of the decedent, was permitted by that Court to file exceptions to the report of sale, and did so, her exceptions covering the whole prior proceedings, and no objection was made to the hearing of her exceptions on the ground that she had not proved herself to be an heir of the decedent. This Court cannot now deny her an appeal.

The order appealed from will be set aside.


author: The Chancellor.

text:
    Peter I. Ackerman and John R. Van Houten v. Bernard Hartley.
    On bill to restrain waste by working a quarry, an injunction was allowed.
    An account for waste done is incidental to relief by injunction against future waste; and is directed on tlie principle of preventing multiplicity of suits.
    ' The facts in this case appear sufficiently in the opinion delivered.
   The Chancellor.

On the 26th May, 1835, Abraham God-win, Jr., leased to Bernard Hartley a lot of ten acres, with the stone quarry thereon, with the privilege of working the said quarry with eight hands and no more at any one time; and further, by the lease, agreed, that the said Hartley should have the use of all the right of said Godwin in the undivided quarry next adjoining said ten acre lot; Hartley to pay $250 rent. During the five years Hartley did no quarrying in the said undivided quarry. After the expiration of this lease no new lease was made, but Hartley continued to work the quarry on Godwin’s ten acre lot, exclusively, until 1845, at a rent of $200; Godwin having taken the house on the said ten acre lot and the use of the land except for quarrying off his hands. After the lease to Hartley for five years expired, the,right to work the adjoining quarry,, in which Godwin had an undivided interest, was leased to Van Buskirk and Van Blarcom.

In 1845, Hartley, who, to that time, had continued to quarry exclusively on Godwin’s ten acre lot, worked, in quarrying, beyond the lino of that lot, and extended his quarrying to and upon the lot adjoining, in which Godwin had an undivided interest.

On bill filed by the other owners of that lot, an injunction was allowed, restraining. Hartley from quarrying further on the last mentioned lot.

The bill also prays, that Hartley may be decreed to account and pay for the stone he had quarried on the last mentioned lot.

Under these circumstances Hartley cannot bo considered as holding, after the expiration of the lease for five years, any interest in the adjoining quarry, or as standing, in reference thereto, in the place of Godwin, who had an undivided interest therein, as tenant in common with, others.

The bill was filed to restrain further waste, and for an account of waste done.

An account for waste done is incidental to relief by injunction against future waste; and is directed on the principle of preventing multiplicity of suits.

An account of the waste done will be directed.

Order accordingly.


text:
    Albert Cornell v. Cornelius Pierson.
    A., being indebted to B., in $90, conveyed certain real estate to B., to secure the payment thereof. And A. being also possessed of personal property, consisting of household furniture, horses, cattle and farming utensils, to the value of about $300, all which had been recently levied on under execution from a Justice’s Court,[and advertised, by a constable, for sale,[it was agreed between A. and B. that B. should [purchase all the said personal property, at the constable’s sale, and, on being repaid by A., at any time, the sum at which the same should be struck off to B. at such sale, should convey the same to A.; and, accordingly, B. purchased all the said personal property at the constable’s sale, for $72. After the sale of the personal property, B., by writing under seal, dated April 4,1838, reciting the said deed to secure the said $90, and the said purchase by B., at said constable’s sale, of all the personal property of A., for $72, certified, that it was agreed between B. and A., that if A., his heirs, &c., should, at any time thereafter, refund to B. the said $90, with interest, B. should reconvey to A. the said land; and that, if A., his heirs, &c., should, at any time, refund to B. the said $72, with interest, B. should re-convey to A. all the said personal property. In 1840, B. sold the real estate, for about $900, and the personal property, for $190. In 1846, A. exhibited his bill against B. for an account.

      JMd, as to the land, that the deed and defeasance constituted a mortgage. That, B having sold the land to a bona fide purchaser without notice of the defeasance, the sale could not be disturbed; but that B. was accountable for the proceeds of the sale.
    But that as to the personal property A. was not entitled to relief; the nominal prices at which the goods were-permitted to be sold at the constable’s sale, the facts, that they were all bought by B., that they remained in A.’s possession for nearly two years, that, in the meantime, other executions were issued against A., which were returned, “ no goods found,” being sufficient to show that the arrangement under which the goods were sold was made for the purpose of defeating or delaying creditors.
    Bill filed. September 29, 1846, by Albert Cornell, stating that the complainant, being seized of certain real estate in South Brunswick, consisting of a farm of about-acres, and a lot of meadow land of about nine acres, and being indebted to Cornelius V. Pierson, the defendant, in $90, which he was unable to pay, the said defendant proposed to him that he should - convey to said defendant the said real estate, to secure the payment of the said $90, and that, upon the payment by the complainant to the defendant of the said $90, and the interest thereof, at any time thereafter, the defendant shall re-convey the said real estate to the complainant. s
    That the complainant acceded to this proposal, and thereupon conveyed the said real estate to the defendant by deed, dated, &c.
    That, about the same time, the complainant was possessed of certain personal property, consisting of household furniture, horses, cattle, stock and farming utensils, amounting in value to about $300 ; a schedule of which is annexed to his bill. That the whole of said personal property had then recently been taken in execution, and was advertised for sale by a constable, to satisfy a judgment then recently obtained against the complainant in a Court for the trial of small causes. That the complainant, being unable to pay the said judgment, and fearing that, by a forced public sale the whole of said personal property, though far exceeding in value the amount of said judgment, would be sacrificed to pay the said judgment, applied to the defendant, who is the son-in-law of the complainant, to befriend the complainant in the matter. That the defendant, professing a willingness to befriend the complainant, offered to purchase the said personal property, at the constable’s sale, for such sum as the same should be struck off' at; and, upon being repaid by the complainant, at any time, such sum and the interest thereof, he, the defendant, would re-convey the said personal property to the complainant. That the complainant readily acceded to this offer, and accordingly the defendant purchased the said personal property, at the constable’s sale, for the sum of $72, and took the same into his possession.
    That the said personal property was purchased by the defendant, and the said real estate was conveyed to him by the complainant, in the trust and confidence that he should re-convey to the complainant both the said personal property and the said real estate upon the re-payment by the complainant to him of the said monies, to wit, the said sum of $72 and the said sum of $90, with the lawful interest thereof. And, in order to manifest the said trust, the defendant made and entered into a written agreement with the complainant, under the hand and seal of the •defendant, dated April 4, 1838, which he delivered to the complainant, and.is as follows : Whereas, on the 31st March, 1838, all the personal property of Albert Cornell was sold at consta'ble’ssale; and whereas I, Cornelius V. Pierson, being willing' to befriend the said Albert Cornell in the best, way I can, and have, therefore bought all the personal property -of the said Albert at the said constable’s sale, for $72. And whereas the said Albert Cornell is further indebted to me in $90, to secure which he has made me a deed for all his landed estate. Now this, is to certify, that it is fully agreed between him and me, that if the said Albert, or his heirs, executors or administrators, shall, at any time hereafter, refund to me the said sum of $72,, with the lawful interest that may accrue thereon, I hereby obligate to re-conyey to him. all the said personal property. And, further, that if the said Albert, or his heirs, executors or administrators, shall, at any time hereafter, refund to me the said $9-0, with the lawful interest that may accrue thereon, I hereby obligate to re-conyey to him all the said landed estate before mentioned: to which contract or agreement I do hereby bind myself, my heirs, executors and administrators. ■
    The bill states, that it was, at the same time, agreed by and-between the complainant and the said defendant, that, as the-complainant was about to remove out of the State, the defendant-should sell and dispose of the said personal property and real estate, as soon as a competent and satisfactory price could be obtained for the same ; and, in the mean while, until a sale could be effected, he should rent out the real estate; and, out. of the monies arising from the sale of the said real and personal estate,, and the. rents of the said real estate, the defendant should, pay off two certain mortgages upon the said real estate, one of $200,, and the other of $130, and, after deducting the said monies due the.-defendantj to wit, the said sum of $72 and the said sum of $90, with the lawful interest thereof, the defendant should pay to the complainant the residue of the said monies arising from the said sale and rents.
    The bill states, that the defendant leased the said real estate for one year ending April 1, 1840, for which .he received $60, That, on the 28th. April, 1840, he sold..the said personal property, for the sum of $190; and that, on 18th May, 1840, he sold the said meadow lot for $96 ; and that, on-- day of -, 1841, he sold the said farm for $762,50.
    That the defendant received the proceeds of the sale of said real and personal estate and the said rents, amounting, in the whole, to $1,108,50.
    That the said personal and real estate was the only property the complainant possessed or owned; and that he was entitled and expected to receive the monies due him thereupon as soon as the same were received by the defendant; but, on divers pretences, which the complainant,'at the time, supposed to be true, but which he has since discovered to be false and unfounded, the defendant delayed, from time to time, to remit to the complainant any portion of said monies. And the complainant was compelled to return to the State for the purpose of seeking a settlement with the defendant.
    The bill prays an account; and that the defendant may be decreed to pay to the complainant such sum as shall be found to be due to him; and for such further and other relief, &c.
    The answer admits the constable’s sale of the personal property, and that, at the sale, the defendant became the purchaser of the articles set forth in said schedule, for the sum stated in the bill; but denies that the same were purchased by the defendant under or pursuant to the arrangement or agreement charged in the bill, or under any arrangement or agreement with the complainant,; but solely from a desire to benefit the complainant’s family. He admits that, shortly thereafter, the complainant did, by his deed, acknowledged April 3d, of same year, sell and convey to him the real estate in the bill mentioned, subject to the incumbrances, for $90, being a debt due to him, the defendant, from the complainant, although the nominal consideration in said deed is $800 ; and that, at the execution and delivery of the said deed, on the day following, an article in writing, of the purport set forth in the bill, and dated, as he believes, on the 4th of said April, was duly made and executed, under the hand and seal of this defendant, and delivered to the complainant. And he admits that the said real estate was conveyed to him, as aforesaid, with the understanding or arrangement of redemption as set forth in the said sealed writing; but he denies, if material for him so to do, that the said conveyance of the said real estate, or the said sealed writing, were made at his request; but insists that the same were the proposal of the complainant, and pressed by him on this defendant. He denies that any other arrangement or agreement between him and the complainant in relation to said real and personal estate accompanied the conveyance, or the said sealed article, otherwise than as set forth in the said sealed article ; and, particularly, denies, that it was at the same time agreed between the complainant and defendant, as the complainant was about to remove out of the State, the defendant should sell and dispose of the said personal property and real estate as soon as a competent and satisfactory price could be obtained for the same, and, in the mean while, until a sale could be effected, he should rent out the real estate, and, out of the monies arising from the sale of the said real and personal estate and the rents of the said real estate, he should pay off two certain mortgages upon said real estate, one of $200, and the other of $130, and, after deducting said monies due this defendant, to wit, the said $72 and the said $90, with interest thereon, he should pay the residue of said monies arising from said sales and rents to the complainant.
    He admits he leased the said real estate as stated in the bill, for one year, for $60 ; but says he received but $40, as near as he can ascertain; and that he disposed of the said real and personal estate at the times and for the sums stated in the bill, and that he has received the same, except a loss of $40 on said personal property for various articles claimed by third persons, and deducting the necessary expenses and mortgage loans.
    He says, that after the said conveyance of the said real estate, the same, with the said personal property, remained in the possession and enjoyment of the complainant, without rent or othel’ payment to this defendant, for two years, (though the same was formally rented to one Peter Cornell, a son of the complainant, thén residing with him,) and that during the said time, the complainant was greatly harassed by his creditors; several times forced to give bond for the benefit of the insolvent laws, until, finding himself wholly insolvent and unable to get along, in April, 1840, he absconded from the State, abandoning the said property, and leaving his family, and a sealed letter to them, stating the reasons of his departure. That, for two months ensuing, the complainant’s family, being in a destitute situation, were supported by this defendant, and then carried, with their baggage, to New Brunswick, their passage paid to New York, and $50 advanced to carry them to Fordham, in the State of New York, where the complainant then was ; and that he has, at different times since their departure, and whilst residing in New York, voluntarily advanced considerable sums of money to the complainant, or the members of his family, towards their support; and that, in November, 1844, the complainant, with his family, by previous arrangement with this defendant, returned to New Jersey, and to a house in--, in the County of Middlesex, belonging to this defendant, and which had previously been repaired by him for the purpose, and which he had provided as a permanent home for the complainant and family; and he denies that there is a large balance or any balance of money due or owing to the complainant from this defendant for or by reason of the sales of the said real and personal estate and the interest and profits thereon.
    And he insists that the pretended claim, if any, of the complainant to any part of the monies arising from the said sales arose more than six years before the filing of complainant’s hill; and he claims the benefit of the Statute of Limitation ; and ho also insists that the pretended agreement, if any, in addition to or in variation of tho said sealed article, was not reduced to writing, and is invalid; and he therefore claims the benefit of tho Statute of Frauds and Perjuries.
    Testimony was taken on both sides.

      H. V. Speer for the complainant.
    He cited 2 Story’s Eq. Jur., sec. 1018, 19; 4 Kent’s Com., 142; 1 Story’s Eq., sec. 371; 1 Atk., 260 ; 2 Breckenr. Rep., 311; 1 Scho. and Lef., 123; 12 Law Journal, new series, 316; 26 Maine Rep., 555; 22 Pick. Rep., 253; 1 Black. Rep., 363; 3 Ves., 613.

      R. Adrain for defendant.
    He cited 1 Green’s Ch. Rep., 488; 5 John. Ch., 1; 6 Ib ., 117; 1 Story’s Eq. Jur., sec. 61.
   The Chancellor.

As to the land, the deed and defeazance constitute a mortgage; and the complainant had the right to redeem on payment of the f 90, to secure which the deed was given, and the interest. The defendant should not have sold the land; hut should have filed a hill to foreclose the equity of redemption, and for a sale under the decree of this Court.

The defendant having sold the land to a bona fide purchaser without notice of the defeazance, that 'sale cannot be disturbed; but the defendant is accountable for the residue of the proceeds of that sale, after satisfying his debt and interest.

As to the personal estate, I think the complainant is not entitled to relief. The personal property was sold by a constable, on an execution against the complainant, and was bought at that sale by the defendant, no other person buying any thing. The. prices at which the articles were struck off show that another object besides that of paying the execution debt was contemplated by the complainant in permitting a sale at such prices, mostly merely nominal. After this sale the property sold re- ' mained in the. complainant’s possession for about two years. Within.that time other executions were issued against the complainant, and were returned “ No goods found.” These returns were made on the ground that, by the said constable’s sale, the property in the goods had passed to the defendant, absolutely.

It would be a mischievous precedent, to allow the complainant now to reclaim the goods on the ground of an arrangement between him and defendant, that the compladnant was to have the goods on the payment to the defendant of the amount at which the defendant bought them at such a sale.

Decr.ee accordingly.


text:
    Daniel Kintner v. James Blair, Charles Kelsey, and others.
    A., being indebted to 13., in 8268, gave to B., on the 1st of April, 1844, a deed in fee for certain land; and, on the same day, B. gave to A. a writing, as follows: “ This rnfcy certify to A., that I agree to give him a deed for the lands he deeded to me this day, providing the said A. jjays me $268 on the 1st of April, 1845, with interest from the 1st of April, 1844; and also he, the said A., to pay me all other claims I may have against him at that time in any manner or shape.” A. failed to pay on the 1st of April, 1845; and took a lease from B. of the lands for one year, commencing that day; and, at or near the expiration of that year, took another lease of the lands for another year. In November, 1846, the Sheriff, by virtue of judgments against A., sold all his right in the said lands, and C. became the purchaser there of. A. remained in possession of the lands from the time of the giving'of the said deed and certificate.
    On a bill by C. against B. to redeem, it was held, that the said deed and certificate constituted a mortgage; and that C. was entitled to redeem.
    Tlio bill, filed March 17, 1847, states, that Isaac M. Wildrick, being seized in fee of the lands in the bill mentioned, and being indebted to George Wildrick in $616, executed to the said George a mortgage of- the said lands to secure the payment of the said sum. That while said Isaac remained entitled to the equity of redemption in said lands, the complainant, at the request of said Isaac, became jointly bound with, and as security for the said Isaac, in a note for $124,65, dated February 11, 1845, payable to one Savercool, one day after date; and.also in another note, for $44,55, dated June 14,1844, payable to one Reed; and that said Isaac then was, and still is indebted to the complainant in the sum of $50, for goods sold, &c.; and in the further sum of §31,99 on a note given by the said Isaac to one Robert D. Stine, or bearer, dated March 11, 1846, now held by the complainant.
    That the said Isaac, being indebted to James Blair in $100, and to Charles Kelsey in §168, who were pressing said Isaac for payment, the said Isaac proposed to give them a mortgage on the said lands to secure the same; but that the said James and Charles proposed to the said Isaac that he should give them a deed for the lands, and that they should allow him a certain time to pay their debts, and give him a written agreement securing to him the right of redemption on the payment of their said debts. That the said Isaac acceded to their said proposition, and executed to the said James and Charles a deed, in fee simple, for the said lands, dated April 1,1844, for the consideration therein expressed of $268 ; and that the said James and Charles thereupon executed and delivered to the said Isaac a Writing to the effect following : “ This may certify to Isaac M. Wildrick, that we agree to give him a deed for the lands he deeded to us this day, providing the said Wildrick pays us $268 on the 1st of April, 1845, with interest from the 1st of April, 1844 ; and also he, the said Wildrick, to pay us all other claims we may. have against him at that time in any manner or shape. Dated the first day of April, 1844.
    (“Signed) James Blair,
    “ Charles Kelsey.”
    That the said James and Charles, or one of them, afterwards obtained a judgment and execution, before a Justice of the Peace, and levied upon and sold the personal property of the said Isaac, to pay the interest of the money mentioned in the said deed as the consideration thereof, and also for the payment of the interest due said George Wildrick on his said mortgage.
    That, on the 16th April, 1845, the said Charles Kelsey took a note from the said Isaac for the payment of one year’s interest on the bond secured by the mortgage to the said George Wildrick, and gave a receipt to the said Isaac for the said note, to the following eifect: “ Received, 16th April, 1845, from Isaac M. Wildrick, his note at six months after date, with interest, for $87,56, and it is understood that if the said Isaac M. Wildrick shall pay to George Wildrick the said sum of $87,56, being the interest on a bond for one year, which the said George holds against the said Isaac, within the said six months, so that I am released from the payment of the same, then the said note the saidllsaac is not to pay; and if he does not pay the said George, then the said note to remain in force and virtue.
    (“ Signed) Charles Kelsey.”

      That the said James and Charles afterwards leased the said property to the said Isaac, for one year, for the amount of the ieterest of the consideration money mentioned in the said deed to them, and the interest due said George Wildrick on his said mortgage.
    That the said Savercool became dissatisfied, and was about to prosecute the said Isaac and this complainant on the note so given to him as aforesaid; and, to prevent costs, the said Isaac and this complainant gave to the said Savercool a bond with a warrant of Attorney to confess judgment, in the penal sum of $211,04, dated June 11, 1846; upon which the said Savercool obtained judgment, as of June term, 1846; and execution thereon was issued and delivered to the Sheriff of Warren.
    That, on the 10th June, 1846, John I. Blair obtained a judgment against the said Isaac, on a bond with a warrant of Attorney, in the penal sum of $290, the payment of which was also secured to the said John I. Blair by a mortgage from the said Isaac on the same lands; upon which judgment and execution was issued and delivered to the Sheriff of Warren.
    That, under these two executions, the said Sheriff levied, among other things, on all the said lands, as the property of the said Isaac; and the said lands were advertised to be sold, and were sold, by the said Sheriff under the said executions, on the 28th of November, 1846, at public sale ; and this complainant became the purchaser thereof at the said sale, for the price and consideration of $4,75, and received the Sheriff’s deed therefor, and thereby became entitled to the equity of redemption of and in the said lands.
    That, afterwards, on the 9th February, 1848, the complainant called on the said James and Charles, and proposed to pay their demands against the said Isaac M. Wildrick, for the purpose of redeeming the said lands, on their releasing or conveying the said lands to this complainant, and, at the same time, requested them to state how much was due between them for principal and interest; that the said James and Charles declined to comply with such request of the complainant; and thereupon this complainant tendered to each of them the sum which he supposed to be due them, respectively, offering, at the same time, to pay any further sum if they would make it appear that the sum he offered was not sufficient, which he avers it was; but that they refused to accept the same and convey their right in said lands to the complainant.
    The bill prays on account; and that, on the complainant’s paying to the said James and Charles what may be found to be due to them from the said Isaac M. Wildrick, they may be decreed to convey to the complainant all their right in the said 'lands; or, that the said lands may be decreed to be sold to pay the incumbrances, &c.
    James Blair and Charles Kelsey put in their joint and several answer.
    They deny that they, or either of them, ever proposed to the said Isaac M. Wildrick that he should give them a deed for the said lands, for the sum he owed them, upon the understanding that the said Isaac should have the right to pay the amount of the debt within a limited time, and that these defendants would execute a written agreement by which the right of redemption would be secured to the said Isaac.
    They say that the said Isaac proposed to these defendants to sell the lands to them, subject to the incumbrances then upon it, for $268, and that these defendants should take out of the purchase money the respective sums (before stated) which the said Isaac owed them, and that they should pay him the balance in cash, and that he, the said Isaac, would thereupon execute to these defendants a good and sufficient deed for the lands. That these defendants then agreed with the said Isaac for the absolute purchase of the said lands, for $268, to be paid to the said Isaac in cash, after deducting the. sums he owed these defendants, respectively, subject to the incumbrances then upon the lands. That, the said James, accordingly, drew the said deed from the said Isaac to these defendants for the consideration of $268.
    That these defendants, before the delivery of the said deed to them, delivered up to the said Isaac the notes they, respectively, held against him, amounting to $190, and paid to the said Isaac the balance, being $78, in cash. That the said Isaac took the said notes and cash, and delivered the said deed to these defendants, duly acknowledged; which deed was intended, and was so expressed by the said Isaac, to convey to these defendants an absolute estate in fee of all the right, title and interest of the said Isaac of in and to the said lands.
    They deny that said conveyance was ever intended as a mortgage ; but was perfectly understood between these defendants and the said Isaac to be an absolute conveyance, without any condition or defeazance connected therewith. They say, that the price they paid said Isaac for the said land was a full and fair price and valuable consideration for the same, together with the said incumbrances (they are before stated and admitted in the answer) then upon it.
    They admit that, after the purchase of the said property had been completed, and after the said deed had been delivered by the said Isaac to these defendants, to wit, on the 1st of April, 1844, the said Isaac, as he was about to leave the store of the said James, remarked: Perhaps I may be able to buy back this land of you next spring, or I may perhaps be able to sell for a little more by that time, and probably you would be willing to •sell the land to me at that time, if I can buy it back. That said James answered, that he would be entirely willing to sell the land to him again. And the said Isaac then proposed thaf he should give an agreement to that effect; which the said Charles opposed; but the said James said : Certainly, I am willing to sell you the land again, and will give you a certificate to that effect. That said James, accordingly, drew up a certificate to the effect set forth in the bill, and it was signed by these defendants; which certificate was only intended as an agreement for the re-purchase of the property by the said Isaac on the said 1st of April, 1845, and was so understood by the said Isaac.
    They further say, that the said Isaac on the said 1st of April, 1845, came to these defendants and informed them that he was not able to purchase the property of them again, as he thought he would be, and must therefore give them up possession of the premises; and that the said Isaac, accordingly, delivered to these defendants peaceable possession of the said lands, on the-said 1st of April, 1845; and these defendants took peaceable possession of the same, and have so continued possessed of the same in their own right to this time. That the said Isaac, at the same time, was desirous to rent the property of these defendants ; and, as it was inconvenient for either of them to occupy said premises, they were willing to rent the same to the said Isaac. And, on the said 1st of April, 1845, the said Charles and the - said Isaac entered into an indenture of lease, in which the said Charles, on the part of these defendants, covenanted and agreed to rent the said lands to the said Isaac for one year from the said 1st of April, 1845; and the said Isaac covenanted and agreed, on his part, to pay therefor, on the 1st of April, 1846, the rent of $50; and did also agree,to farm said lands in a proper manner ; and to cut no green timber for his firewood; and that he would deliver up quiet and peaceable possession of said lands, at the expiration of the said year, to the said Charles. That, on the 23d of January, 1846, the said Isaac entered into a further ■agreement with the said Charles for the rent of said lands from April 1,1846, to April 1,1847, the said Isaac covenanting, on his part, to pay therefor the rent of $70; that he would cut no green wood for firewood as long as there was dotted and old timber; that he would pay all the land taxes ; and that, at the expiration of the said term, he would deliver up peaceable possession of said lands to the said Charles. And that, by a like indenture, made between the said Isaac and the said Charles, on the 25th December, 1846, the said Charles leased the said lands to the said Isaac for another year, ending April 1,1848, the said Isaac covenanting to pay therefor the rent of $45, to cultivate said farm-in a proper manner, and to cut no green wood, (as before} and to deliver up peaceable possession of the farm on the said 1st day of April, 1848.
    They say, that, from April 1, 1845, when they received pos. session of said lands from the said Isaac, to the present time, they have been in quiet and peaceable possession of the said lands; , and during all that time the said Isaac was, and still continues to be, the tenant of these defendants as aforesaid. That, after the said Isaac had given up the possession of the said lands to these defendants, they had a conversation with the said Isaac on the subject of the sale of said lands and the certificate. And that the said Charles asked the said Isaac whore the said certificate was ; and that said Isaac answered that he had mislaid it, as it was of no use to him he had taken no care of it; that he would give it up to the said Charles whenever he could find it, if he should be able to find it at all.
    That, in a further conversation with the said Isaac, the said Charles told him he understood that he, the said Isaae, had found fault with these defendants, and had said that they had shaved him in the purchase of said property, and had not paid him what they agreed, and that these defendants had told him it was a mortgage in place of a deed. And that the said Isaac denied that he had ever used such language or anything like it; and stated, that the agreement between him and these defendants was a fair one; that these defendants had paid him for the property all they had agreed to, and that they had paid him the full worth of the land, including the incumbrances, and that he, the said Isaac, at the time of the sale, considered that he made to these defendants a fair and bona fide deed for the said lands.
    They admit that the said Charles sued the said. Isaac, before a Justice of the Peace, upon the lease made between the said Isaac and the said Charles, for the rent of the premises, and obtained judgment for the amount of the rent specified in the said lease first made; and that, on an execution issued on that judgment, the personal property of the said Isaac was levied on to pay the rent due these defendants on the said lease. But they deny that they, or either of them, ever prosecuted and obtained a judgment against the said Isaac and levied on his personal property to pay the interest on the consideration money mentioned in said deed and the interest on the mortgage of the said George Wildrick.
    They admit that the said Charles, on the 16th of April, 1845, took a note from said Isaac, at six months, for 887.36, and gave him the receipt mentioned in the bill. That, said Isaac having failed to repurchase the property on the 1st of April, 1845, and having given up the possession of the premises to these defendants as before stated, the said Charles told the said Isaac that he ought to pay some rent for the year previous; that these defendants were liable to pay the interest on the George Wildrick mortgage, and that he had the use of the premises the year previous, and therefore should pay these defendants a reasonable rent for the same. And they say that the said Isaac agreed to pay a reasonable rent for the premises during the year 1844, which they fixed at said sum of $37.86, and for which sum the said Isaac made his note aforesaid to the said Charles. That, after said note was made, the said Isaac said it would suit him better if the said Charles would allow him to pay the interest on the George Wildrick mortgage to the said George himself; that he could get along much better with his uncle. The defendant Charles told said Isaac it was a matter of indifference to these defendants ; that they were bound to pay the George Wildrick mortgage; ■ that it would suit them quite as well if the said Isaac paid that amount of interest on that mortgage as if he paid the money directly to these defendants. That said Charles, accordingly gave said Isaac the receipt mentioned in the bill. And they say, that the said Isaac never paid that amount of interest on George Wildrick’s mortgage.
    They deny that they ever intended by the said arrangement to construe their deed into a mortgage; and deny that they rented the said property to the said Isaac for one year to pay the interest on the consideration money in the deed from the said Isaac to them and the interest money on the mortgage to the said George Wildrick, or that they rented the premises to the said Isaac in any other way than they have hereinbefore set forth, or that they ever claimed the consideration money in their deed, either principal or interest, from the said Isaac.
    Testimony was taken on both sides.
    P. B. Kennedy and P. D. Vroom for the complainant.
    They cited 2 Amer. Eq. Dig. 258; Plac. 1, 2, 3, 5, 6, 9, 14, 19, 20, 25, 26; 2 Cowen, 246; 6 John. Ch. 324, 417; 2 Ib. 189; 15
      John. Rep. 555; 1 Green’s Ch. 264; Saxton’s Ch. 534; 7 John. Ch. 42; Pow. on Mortg. 381, 2, 343, 4, 5; 1 Ch. Cas. 59; 1 Vern. 193; 1 Sandford’s Ch. Rep. 56.

      J. G. Shipman and W. Halsted for the defendants.
    They cited 2 Edw. Ch. 138; 2 Ball & Beatty, 274; 7 Cranch, 237; 3 Green’s Ch. 307; Saxt. Ch. 301; 4 John. Rep. 42; 7 Ib. 282; 5 Halst. Rep. 193; 4 Ired. Eq. Rep. 413; 2 Green’s Ch. 1; 3 McLean’s Rep. 41; 1 U. S. Dig. Estoppel, 654; Rev. Stat. 503, sec. 10; 4 John. Rep. 82; 19 Wend. Rep. 518; 4 Denio’s Rep. 493, 4; Prec. in Ch. 275; 1 Paige, 20; 2 John. Ch. 238; 1 Ball & Beatty, 181.
   The Chancellor.

The question is, what was the character and effect of the transaction between Isaac M. Wildrick and the defendants at the time when these writings were made and delivered, as evidenced by the writings and the facts in evidence. The complainant claims that it was a case of a deed, absolute on its force, and a defeazance, constituting the transaction a mortgage. The defendants contend, that it was an absolute sale by Isaac M. Wildrick and purchase by them; and that the certificate, as it is called, was merely an independent agreement by the defendants to sell the lands to the said Isaac on his paying to them, at the expiration of one year, the consideration money paid by them for the deed, with interest, and such other claims as they might then have against him. I think the writings constituted a mortgage at the time when they were made and delivered. And that such was the intention of the parties seems clear, from the inadequacy of the consideration, shown in evidence, and the fact that Wildrick remained in possession without any lease, or agreement for the payment of rent, until after the time for payment had expired, and from other facts in evidence. Such being the effect of the writings, and the intention of the parties at the time they were made, the nature of the transaction was not changed by the subsequent leases given by Wildrick. It may be that he, and perhaps the defendants also, supposed that when the time for payment expired the agreement of the defendants to reconvey was no longer of any effect. He, and perhaps they, may not have understood, that writings of this nature, originally constituting a mortgage, remain a mortgage though default he made in payment at the time fixed.

Decree for complainant.


text:
    John Gilbert and others v. The Morris Canal and Banking Company.
    If the erection of an embankment across, or other obstruction of a creek would not be a public nuisance as obstructing public navigation, this Court will not interpose by injunction o prevent it.
    An individual may come into this Court if he is about to be injured by a public nuisance, and obtain an injunction to prevent it; but the Court must he satisfied that it would be a public nuisance, or it will not interpose.
    The hill, filed September 18, 1850, states, that the complainants are seized in fee of a certain lot of land in the township of Van Vorst, in the County of Hudson, containing 4 88-100 acres, bounded on tbo south-west by a certain creek called Mill Creek; and that two of the complainants are seized of other lands lying contiguous to the first mentioned lot; upon which tracts of land the complainants, in partnership, carry on the business of man-ufacturing starch, and have large and costly buildings, apparatus and machinery for the purpose of carrying on such manufacture. That the quantity of land thus owned and occupied is more than ten acres, and that the value of the lands, buildings, apparatus , .•and machinery used by the complainants in their said business,-on the said premises, is more than $40,000. That the said’ manufacture has been carried on upon said premises by the complainants or some of them for more than 22 years. That in carrying on said business a copious supply of water is necessary. That they now use about 150,000 gallons of water daily; and that it is necessary to have an outlet to discharge the water used by them in the said manufacture into some large running -or tide stream, so that such water, which is loaded and impregnated with the refuse part of the corn used in such manufacture may be rapidly carried away, and that without this such water would stagnate and become a nuisance by its intolerable smell, and unhealthy exhalations. That the materials used in their said business are of great hulk and weight, and their transportation expensive. That they consume in their said business, yearly, about 1500 tons of coal, and more than 50,000 bushels -of grain; and that a water communication with the bay of New York,by which they can bring the boats laden with these articles to .their premises, is of great value to them, and much lessens the' costs of carrying on their business. That for these reasons their factory was originally built in the vicinity of said Mill Creek, and they purchased the first above described lot. And the complainant, William Colgate, when he erected the first factory upon said premises upon that part which he bought of Cornelius Van Vorst, in 1827, did, in May, 1828, obtain from, said Van Vorst, who then owned the lands between the lot on-which said first factory was built and said Mill Creek, an agreement in writing by and in which the said Van Vorst agreed,. “ that said William Colgate should at any future period have the privilege of digging and keeping open, at his cost or expense, a ditch of sufficient depth and width for a common New York lighter to approach his lands ; the said ditch to run in a. straight line to the nearest part of the creek.”
    . .That the said creek is a navigable creek, in which the tide ebbs and flows, and empties into the bay of New York; and that the creek, in its natural state as it was before it was heretofore obstructed by the Morris Canal and Banking Company, in a. manner similar to that now threatened and commenced by them as hereinafter complained of, was at ordinary high water navigable for lighters and vessels of more than 50 tons burthen, from, its mouth unto and beyond the lot of land first above described; and that the tide flowed and ebbed in the-same unto and beyond said lot to the depth of more than five feet.
    That there formerly was a public landing on the said creek above the said lot, where the old road leading from Bergen town to the ferry at Powles’ Hook crossed the same, from which sail boats of the burthen of 20 tons were in the habit of transporting market and other produce to the city of New York. That if the obstructions unlawfully placed in the said creek were removed the same would now be navigable, unto and above the. complainants’ premises, for lighters and other vessels of 50 tons burthen. That, owing to the comparatively small amount of business done by the complainants at first, and to divers obstructions placed and maintained unlawfully in and over said creek, the complainants have not hitherto used it for the purposes of navigation; but that, for the year last past, they have been making efforts to have the said unlawful obstructions removed, and the same cleared and made navigable as it w'as naturally, and still of right ought to be ; and that the use of said creek for navigation such as it is naturally capable of, and was formerly used for, would save to the complainants about $1200 yearly in the prosecution of their said business.
    That the.Morris Canal and Banking Company have located the line of their canal across said creek, so as to cross the same between its mouth and the said lot of the complainants; and that the said Company intend to construct said canal across said creek by making the banks of said canal of solid embankments of earth or other materials extending across said creek and resting on its bottom, and to be raised above the surface of high water in said creek, in such manner as in a great measure to prevent the free flow and re-flow of the tide in the same, and without providing any opening through such banks or mounds for the passage of such vessels as could and did in its natural state navigate the same, and still of right ought to navigate the same, or for any boat or vessels whatever. And that said Company and their workmen, agents and contractors, have begun and are now actually engaged in constructing such banks across said creek, and threaten and intend to go on with and complete the same.
    That if the said Company go on and complete the said banks of said canal across said creek where they have commenced the same, and maintain them, the flow of the tides in said creek will be much impeded, and the navigation of the said creek be entirely prevented, and the complainants be thereby prevented from having the use and advantage of said creek in so large and beneficial a manner as they ought to have for the purposes of their said business, and from navigating the said creek from their premises to its mouth.
    The bill prays, that the said Company may be forever restrained by injunction from erecting or maintaining across said creek, between its mouth and the said lot of the complainants, any banks or works by which the free flow of the tide may be obstructed or impeded, or by which boats, lighters or vessels (of such size as were adapted to the navigation of said creek in its natural state as it was before the original construction of the said Morris Canal) may be hindered or prevented from coming up and navigating the said creek; and for such further and other relief, &c.
    On the reading of the bill and the affidavits thereto annexed, it was ordered that notice of the application be given to the defendants.
    At a subsequent day, the parties appeared. And the answer of the defendants was read, and the affidavits annexed thereto.
    The defendants admit, that the said Company have located the line of their canal across the said creek ; and that they did, by means of the banks of their canal, obstruct the flow of water into the said creek. They say, that the construction of the canal, by means of banks across said creek, was done during or prior to 1835 ; and that the same was done by authority of and according to two acts of the Legislature, (stating them;) and that the said embankments were so continued across said creek, obstructing entirely the flow and re-flow of the water in said creek, until about eighteen hundred and--, when gates were constructed in said embankments, so that by raising the said gates the water would flow and re-flow up and down the said creek; and it was usual for the said Company to cause the said gates to be opened about once in each week; and the said embankment, with the said gates, were continued across the said creek until about the year eighteen hundred and--, when, in consequence of that part of the canal not being in much use, and for a considerable portion of the time not used for any purpose, the said embankment was suffered to go out of repair; but neither the said canal or the said embankments across the said creek have at any time been abandoned, and were only suffered to get in bad repair on account of tbe pecuniary embarrassments of the said Company.
    They say, that, when the said canal was constructed across the said creek, proceedings were duly taken, under and according to the provisions of the said acts of the Legislature, and all damages accruing to the owners of lands on the westerly side of said creek by reason of the said canal and its works, by obstructing the said creek or otherwise, were ascertained and paid; and that Cornelius Van Vorst was then the sole owner of the land on the easterly side and margin of said creek, extending a number of hundred feet, as far up as the land of one Merselis, whose lands were situated farther up the said creek than the said lands now claimed by the complainants.; the lands of the said Van Vorst at that time comprising all that part of the lands now claimed by the complainants which border on the said creek. And the said Van Vorst, being so seized, did, with his wife, license and authorize the construction of the said embankment across the said creek, and did, on the 27th June, 1837, convey to the said Company the lands required to be occupied by the said canal on the easterly side of the said creek for the purpose of having the said canal constructed across the said creek and on the lands easterly thereof, the said lands with the appurtenances being conveyed to the said Company and their successors and assigns, to their own proper use and benefit, as long as the same should constitute and be a part of the said canal and continue to be used and occupied as such.
    That the said Merselis, who owned the lands on both sides of said creek above the said lands of said Van Vorst, (part of which lands of said Van Vorst are now claimed by the complainants or some of them,) at the time of the construction of the said canal, had a mill with a horizontal wheel which was impelled and moved by the flow and re-flow of the water in the said creek, situated on his lands. That the said mill had been used for a great many years ; and, inasmuch as the water power that drove the said mill was derived from the flow and re-flow of the water as occasioned by the tides, it was impossible that any other mill should be constructed below the mill of the said Merselis on the said creek without destroying the power which belonged to the said Merselis’s mill. And the defendants aver, that the said Merselis had the acknowledged and exclusive right to all the privileges of the said creek for milling purposes ; and that the said Merselis, with his wife, did, on the 24th November, 1835, about the time when the said Company erected the said embankments across the said creek, for and in consideration of $2,000 to them paid by the said Company, convey and release to the said Company all his right, title and interest in the water privileges of the said creek, by a deed which was recorded on the 29th July, 1837, in the Clerk’s office of Bergen County. And these defendants insist, that, by reason of the proceedings had under the said acts of the Legislature and of the said license and conveyances from the said Van Vorst and wife and Merselis and wife, they have good right and title to continue, repair and maintain the said canal and its embankments across the said creek, at the place where it was first constructed.
    The defendants aver, that the said Van Vorst and wife, long after they had given the license for the erection of the said embankment, and long after they had made the said conveyance to the said Company for the express purpose of having the canal constructed and continued across the said creek, and after these defendants had expended large amounts of money in repairing that part of their canal which extends from the Passaic to the Hudson river, and by deed dated July 10,1849, did convey the said lands to the complainants for the consideration of $772.' And these defendants aver, that the complainants took the said conveyance with full notice and actual knowledge of the erection of the said embankment, and of the said license, and of the said conveyance made by said Van Vorst to the said Company, and with full notice of the rights of these defendants to construct and continue their canal and embankments across the said creek, and of their intention so to continue it. And they deny that the complainants, or any of them, are seized or possessed of any lands bordering on the said creek, excepting the said lands so conveyed to them by the said Van Vorst in 1849.

      The defendants say, that, many years ago, a road from Bergen town to Jersey City was constructed across said creek ; that the causeway from Newark to Jersey City also crosses over said creek; as does the road or street known as Grand street. That the said roads cross the said creek by means of common bridges, without any draws for the purpose of boats being made therein ; and that, in about the year 1832, the New Jersey Railroad and Transportation Company, in constructing the embankment for their Railroad, filled and dammed up the said creek north of the. lands so purchased by the complainants in 1849; and that in 1835 the embankments of the canal entirely closed off the said tides as aforesaid.
    They say, that the said creek is a tide creek, in which, at high tide, the water is some two or three feet deep, and when the tide goes down is entirely empty of water; that there are many such creeks setting up into the salt meadows in the neighborhood of Jersey City, Newark and Elizabethtown; and that they are informed and believe, that, in making roads, constructing drains and making embankments for meadows, it has been customary to fill up or obstruct such creeks ; and they submit that the said creeks are not what aro properly called navigable. That they are generally and credibly informed, and believe, that the said Mill Creek was of no value to the public for the purposes of navigation, and that, in fact, it was not and is not at all navigable, except at certain times for very small boats, and is not considered, and cannot fairly bo termed a navigable stream of water; that there are no settlements thereon, and no wharves thereon; that the public, before the construction of the canal, did not use it or value it as navigable water; and that the defendants know of no objection and have heard of no objection having been made to the erection of the obstruction to the passage of boats in said creek from the public. That it may be true that, at times of high water, some boats may have passed up said creek ; and it may be true that, when the facility for communication with New York was much less than it now is, there was a place or landing where the farmers brought their produce for transportation to the New York market; but they deny that the said creek was used for any such purpose for years before the construction of the said canal. They say, that prior to any obstruction being placed across the said creek it had been suffered to become in a good measure filled up with mud and other substances, and that at that time the said creek was considered of little or no value for the purpose of boating; and that at the present time, had the complainants, or any other person, a right to remove the obstructions across the said creek, the passage of boats in said creek of such trifling capacity would not be desirable, inasmuch as the land through which the creek runs is laid out in streets and building lots, and will be required to be filled up to render them available.
    They say they have no knowledge of the agreement referred to in the bill as made by said Van Vorst to the complainant Colgate, dated May, 1828, by which, it is in the bill alleged, the said Colgate acquired the right of digging and keeping open a ditch, &c. And they say, that the first intimation they ever had of any such agreement was by the bill of complainant. That, if any such agreement was ever made, the same was never recorded ; and the Morris Canal and Banking Company, at the time of the said conveyance by Van Vorst and wife to them, or since then, up to the time of the filing of the bill of complainant, had no notice or knowledge thereof, and are in no manner bound or affected thereby. And they say, that the complainants, or any of them, never acted under or claimed any right as against the said Company by reason of the said agreement, and have never made any other ditch than one, two or three feet wide, leading to the said creek, for the purpose of drying their land, or for the purpose of carrying off the refuse matter from their factory; but that the complainants have ever since acquiesced'in, and so admitted, the right of the said Company to erect and maintain their said canal and embankments across the said creek ;• and that the said agreement, if ever made, does not convey any right to navigate the said creek, but simply authorizes a ditch of certain dimensions fixed by a convenient standard of measurement.
    They say they are ignorant of the amount expended by the complainants on their land$ nor can that affect the right of these defendants; but, if it could, they aver that the lands are of much more value than before the construction of the canal. And they deny that the complainants have expended any thing on the lands bordering on the said creek.
    They say they are ignorant of the motives which influenced the complainants, or some of them, in fixing their location on the site selected by them ; but say, that they have good reason to believe that the idea of securing to themselves the navigation of said creek was never thought of by them; and that the said creek could not be used for such purpose ; and, in fact, when the first purchase was made by William Colgate, in 1821, these lands did not extend to the said creek by four or five hundred feet; that none of the complainants owned any land on said creek until 1849. That, at the time of the first purchase, it appears by the bill, they were not even possessed of the protended right of having a ditch, conveyed by the alleged agreement of 1828 ; nor had the complainants any such pretended right until after their factories were built. That the complainants, for a long course of years, never used or pretended to use, or make any preparations to use any right of navigation. That the complainants not only acquiesced in the construction and continuance of the said embankments, but, when these defendants expended about $42,000 in repairing the canal from Jersey City to Newark, as they did in 1845 and 6, the complainants, although knowing of such repair, set up no such right to the navigation of the said creek, but acquiesced in the right of these defendants to control the waters in said creek, and never set up any right in said creek until after the purchase made by the complainants in 1849. That, while the said creek was formerly navigable for small boats at high tide, the navigation, even before the canal was made, had ceased to bo of any practicable value.
    They say, that they do not know, but believe it is desirable that the complainants should have some means of removing the offensive refuse matter proceeding from their business; and, while they submit whether the complainants have any legal-or equitable right to control, in any manner, the flow of water in the said creek for any purpose; yet they deny that it is their intention to construct the embankments of their canal so as to prevent the flow and re-flow of the tides in said creek; but aver that it is, and, ever since they commenced to take measures for the repair of the canal at Mill Creek, has ever been their intention to make a sluice way, in size two feet by eight feet, and to leave the same at all times open; and that such aperture will be fully sufficient to allow the tides to flow and re-flow into and from the said creek, as it would do if such embankment was not made.
    They say, that the said canal was originally constructed from the Passaic to the Hudson river by the authority of the Legislature, which had, as they submit, full power to confer such authority. That the said canal was so made at an expense of over $210,000. That about $67,000 have been expended by these defendants in the repair of the said canal from Newark to Jersey City. That if they are enjoined from constructing embankments across the said creek, the canal from the Passaic to the Hudson, or a great part thereof, will be worthless to these defendants, and they know of no practical route for the said canal without crossing the said creek ; and that it is impossible to cross the said creek by means of a ferry, or by any other means than embankments.
    There were several depositions annexed to the answer.

      A. O. Zabriskie and P. D. Vroom in support of the application for an injunction.
    They cited 2 Story’s Eq. Jur., section 921, 4; Saxton’s Ch. 192, 382; 19 Ves. 617; 6 John Ch. 439; Angel on tide waters, 57, 87, 88, 89, 90, 121; 1 Pick. Rep. 186; 1 Zab. Rep. 588; 5 Wend. 451; Davies Rep. 157; 11 East. 765; 7 Man. & Granger, 879; 2 Ib. 165; 1 Barn. & Cresw. 424; 23 Pick. 373, 398; 6 Paige, 565; 10 Mass. Rep. 70; 15 Wend. 132; 11 Peters, 420; 21 Pick. 344; 2 John. Ch, 439; 4 Paige, 510; 12 Peters 91; 1 Railway cases, 159.
    P. Bentley and F. T. Frelinghuysen contra.
    They cited
      Saxton’s Ch. 884; 1 Kent’s Com. 436, 7; 2 Story’s Eq. Jur., sec. 928, 4; 2 Peters, 245.
   The Chancellor.

The creek is large enough, in width and depth of water, for useful purposes of navigation, if any such navigation were wanted, or would, with the present means of communication with New York, be ever used. But, certainly, this creek will never be used for transportation between the head of it, or any point on it (it being, in its whole length, within|a mile from the Jersey City ferry) and New York, now that there are steam ferry boats starting every few minutes, plying between Jersey City and New York, and carrying over wagons and vehicles of all descriptions, with their loads. It would be idle to suppose, that, with such facilities for crossing the Hudson, at Jersey City, with loaded wagons, any person would unload at any point on this creek, and put his produce or other goods on board a boat for transportation by water to New York, twice the distance, and which would occupy thrice the time, or more, and be at the trouble and expense, on reaching New York, of reloading his produce on a vehicle, for the purpose of carrying it to its destination in the city.

I cannot say that the shutting up of the creek would be a public, nuisance, as obstructing public navigation; and this is the nnly ground on which this Court could interpose. An individual may come into this Court, if he is about to be injured by the creation of a public nuisance, for an injunction ; but in this case it is evident that the public do not, and would not use this creek for the purposes of navigation.

There is a bridge over this creek without a draw, and has been for eleven years, and the public have taken no step to open it for navigation.

Again, if the embankment proposed to be made by the defendants shall be considered a public nuisance, the nuisance may be abated by proceedings at law.

Application denied.


author: The Obdinaky.

text:
    In the matter of the accounts of the Executors of Samuel Haines, deceased.
    A., by will, gaye the bulk of Ms estate to Ms two sons, and smaller portions to Ms daughters, and appointed the sons Executors of the will; and the will contained this clause, “and I do order and direct, that all my just debts and expenses be duly paid and satisfied out of the legacies bequeathed to my two sons.”

      Seld, That the Executors were not entitled to commissions for settling the estate.

      Ééld, That parol evidence that, by the word '(expenses” in the said clause, the tesi tator intended to include the expenses of settling the estate was inadmissible.
    Samuel Haines, deceased^ by his will, bequeathed and devised as follows:
    <c It is my will, and I do order and direct, that all my just debts and expenses be duly paid and satisfied, (by my Executors herein named,) out of the legacies bequeathed to my two sons, as. soon as conveniently can be after my decease.”
    He then bequeaths to his wife a home in his house, consisting of two rooms, with certain privileges.
    He also gives to his wife such household goods as she may select, previous to any appraisement of his personal property; and gives her an annuity of $50, to be paid to her by his son Charles, and an annuity of $70, to be paid to her by his son Isaac; which said sums are to be paid out of the devises of land's made by the will to his said sons; the bequests to his wife to be in li'eu of dower.

      He gives and devises to Charles the south-westerly part of his farm, by lines given by the will, with the buildings and improvements thereon, in fee, which south-westerly part contains 78 1-2 acres, subject to the payments and privileges, before mentioned, to his wife.
    He gives and devises to Isaae, the north-easterly part of the said farm, by the lines afóresaid, containing 82 acres, with the buildings and improvements thereon, in fee, subject to the payment of the said money before mentioned to his wife.
    He devises to his two sons, Charles and Isaac, each an undivided half of all his interest in a certain piece of cedar swamp, and the remaining part of a certain tract of pine land, after running off ten acres from the easterly end thereof, which he devises to his grandson, Samuel H. Roberts$ the whole tract containing 50 acres.
    He also devises unto Charles and Isaac a tract of timber land containing about 22 acres.
    He directs his Executors to sell all his interest in another tract of cedar swamp, and to give deeds therefor; and to sell all the residue of his personal property, after his wife shall have selected such goods, &c., as before stated; the proceeds of said sales to he added to his other personal estate, if any, to he divided and paid by the Executors as follows : $100 to his daughter Ann, wife of Samuel Shreve, and the residue to he equally divided between his daughter Ann and Samuel H. Roberts and Elizabeth, wife of Walter Knight, children of his daughter Hannah, deceased; the said Samuel and Elizabeth taking the half which his said daughter Hannah, deceased, would have been entitled to if living.
    And be appoints bis sons, Charles and Isaac, Executors of the will, “ under a belief and confidence that they will perform and execute the same in all things, according to the true intent and meaning thereof, to the best of their ability and understanding. The will was proved December 8, 1847.
    In October, 1849, the accounts of the Executors were presented to the Orphans’ Court of Camden County for settlement. The accounts, as presented, contained a credit to the Executors for commissions for settling the estate, on $8921,54, at 6 per cent — '§235,29; an,d struck the balance in the accountant’s hands, to be disposed of according to the will, at $3,328,02.
    Several exceptions were taken to the account before the Orphans’ Court; and,_ in February, 1850, that Court ordered the charge for commissions to be struck out, and allowed the accounts in all other respects. The accounts were restated according to this direction, and the balance in the hands of the Executors was found to be $3563,31.
    From this order of the Orphans’ Court the Executors appealed to this Court.
    No appeal was taken by the exceptants before the Orphans’ Court.
    The respondent, in his answer to the petition of appeal, states, that, at the hearing before the Orphans’ Court, the exceptants below offered Benjamin Buckman, Esq., who drew the will, and was, also, a subscribing witness thereto, as a witness to prove that the testator, by the words used in the will, meant and intended that his said sons and Executors should pay, out of the property given to them, besides paying the debts, not only the funeral expenses, but, also, all the expenses and charges incident to and attending the settlement of the estate ; and that the word “ funeral” was intentionally omitted, before the word “ expenses,” with a view of fully expressing such meaning and intention ; but that the Orphans’ Court refused to admit the evidence so offered.
    The respondent denies, that the allegation, in the petition of appeal, that the Executors were subjected to great expense and trouble, or either, in settling the estate, is true.
    And he says, that in the amount on which commissions were charged by the Executors are included $1131,36 due and owing from the appellants themselves to the estate, the sum of $230,36 due from, Samuel H. Roberts, one of the distributees, and the

      sum of $20,10 due from the respondent to the testator; which two last mentioned sums were merely deducted from the shares of - said two distributees.
    All the exceptions, except that which relates to the commissions, were arranged between the parties before the argument in the Prerogative Court.

      Dudley for the Appellants.

      Drowning for the Respondents.
   The Obdinaky.

Each of the sons get, by the will, a farm, with buildings and improvements on it, one of 73 acres, and the other, of 82 acres ; and the two, together, get 40 acres of pine land, and 22 acres of timber land, and an undivided half of the testator’s interest in a piece of cedar swamp, the number of acres in which is not stated. I am ignorant of the value of the lands devised to the sons. The two shares of the daughter and the children of the deceased daughter, as the account now stands, will be but $1781.65, each share.

Nor have I any knowledge of the amount of the debts to be paid by the sons, Executors, out of the lands devised to them.

The Orphans’ Court allowed no commissions; being of opinion, that the will required the sons, Executors, to settle the estate without charge.

The will provides, “ that my just debts and expenses be duly paid and satisfied, by my Executors, (the two sons,) out of the legacies bequeathed to my two sons.” In the lands devised to the sons they have in their own hands the fund out of which the debts and expenses are to be paid. The personal estate is not to pay the debts and expenses. The sons, to whom this fund for the payment of the debts and expenses is given, are made Executors of the will, and as such are to settle the estate. The clause may be properly read thus : my debts and expenses to be paid by my sons, whom I appoint Executors, out of the property bequeathed to them.

Paying debts is a part of tbe services for which commissions =are allowed. The debts, in this case, being, by the will, to be paid out of property devised to the sons, they should receive no ■commissions for that service. The devise to them was the consideration, in the mind of the testator, why the sons should pay the debts. Testators frequently provide in their wills a mode or amount of compensation to Executors for settling the estate.

The word “ expenses” is never used to signify expenses during the life of the testator ; they would be debts. The clause may be read thus : all my debts, and the expenses, to be paid by my Executors out of the property devised to my sons; and I think this would mean, the expenses of the Executors in settling the estate, and, the will making the sons Executors, would put it on them to pay the debts.

The clause is in substance this: That all my just debts and expenses be paid by my executors out of the property given to them; that is, that all debts and all expenses be paid by them.

If the bulk of the estate is given to the sons, it is a persuasive consideration in favor of the conclusion reached by the •Orphans’ Court. The Judges of that Court may be supposed to have known whether the sons had the bulk of the estate. No information has been given tome by the appellants as to the value of the lands given to the sons. The parol evidence excluded by the Orphans’ Court was inadmissible. The order of the Orphans’ Court will be affirmed.

Order accordingly.


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    Plumley v. Plumley.
    A. conveyed lands to B., in trust for the use of M. P., wife of J. P., during her life, and after her death to the use of the children of said «T. P. and M, P. The trustee died. J. P. and M. P. exhibited their bill, praying that a new trustee be appointed; making the children of the complainants, only, defendants.

      Seldy on demurrer, that the heirs at law of the trustee should have been made porfíes» Leave was given to amend by adding parties.
    On the 27th June, 1850, John Plumley, and Mary, his wife, exhibited their bill, stating that, by deed dated January 1,1819, John Philips, junior, for the consideration of $50, to him paid or secured by Hannah Hart, conveyed to the said Hannah Hart, in trust for the use of Mary Plumley, wife of said John Plumley, during her life, and to her heirs after her decease, share and share alike, and to their heirs and assignees forever, a certain lot of land (describing it) to have and to hold unto the said Hannah Hart for the uses and purposes aforesaid.
    That on the 1st April, 1830, Thomas R. Taylor and Susan, his wife, by deed of that date, for the consideration expressed of $100, conveyed to the said Hannah Hart and her heirs and assigns, the lot of land (describing it), in trust, to the use of John Plumley and Mary his wife, and the survivors of them, for and during their natural lives, and, after the decease of such survivor, to the use of the said John and Mary, their heirs and assigns forever.
    That said Hannah Hart accepted and acted upon the said trusts until her decease ; and that she died, in 1886, intestate, and that no successor in the said trusts has been appointed. The children of the complainants are the only defendants. The bill prays that a new trustee may be appointed.
    One of the defendants demurred to the bill, on the ground, that it appears by the bill that the heirs at law- of Hannah Hart, deceased, ought to be made parties.
    Beasley, in support of the demurrer,
    cited Hill on trustees, 303; 2 P. Wms., 626, 736; 1 Barnw, & Ald., 605; 16 Ves.,. 27; 1 Simons., 264.
    S. R. Hamilton contra.
   The Chancellor.

The demurrer is allowed; with costs. The complainant has liberty to amend his bill by addingparties.--


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    William N. Brundage and Mary Ann, his wife, v. Goodfellow.
    Injunction allowed to prevent waste by a widow on the lands in her possession assigned to her for her dower.
    On a bill against a widow in possession of lands assigned to her for her dower, to stay waste, a decree pro confesso was taken, and an order of reference made to a Master to take an account of the waste done; the order directing, that notice of the time and place of proceeding before the Master be given to the defendant; which notice was served; but the defendant did not appear before the Master. The Master’s report was filed September 3, 1850. lío rule to confirm the report nisi was entered. On the 9th September, 1850, exceptions to the report were filed. At the December term, 1850, a motion was made, on the part of the complainants, to strike the exceptions from the files.
    Held, that when the order of reference, on a decree pro confesso, directs that notice of proceeding before the Master be given to the defendant, a rule to confirm the report of the Master nisi should be entered on the part of the complainant. Motion denied.
    Where a decree pro confesso is taken, and a reference to a Master ordered, and no notice to the defendant to attend the Master is necessary, and no rule to confirm his report nisi is required, (as by rule 4, article 14 of the rules,) if exceptions are filed to the report, it seems, that the complainant may set the cause down preparatory to further directions or to a final decree; and, if the exceptions be overruled, may get a final decree at the term at which the cause is so set down.
    The bill, filed February 25, 1850, by Wm. N. Brundage and Mary Ann, his wife, states, that Hezekiah Goodfellow died seized of certain real estate in Middlesex County, leaying his widow, Fanny F. Goodfellow, and bis children, Mary Ann, one of the complainants, (and others, naming them.)
    That, since the death of the said Hezekiah, the one third part of the said real estate was assigned and set oif to his said widow as her dower therein. That the said widow then had and still retains possession of the same.
    That the said third part includes about six acres of wood land; and that the complainant, Mary Ann, with the said other children of the said Hezekiah, are entitled to the inheritance of the said third part.

      That the said widíw has committed great waste, spoil and destruction in and upon the said third part so set off to her for her dower, by cutting down the timber and trees which were standing and growing thereon; a large quantity whereof, cut up into cord wood, now remains thereon, which she intends to sell. That she has two laborers employed, who are now engaged in cutting down the timber and trees standing on said third part, with intent to sell the same; and that the complainants have been informed and believe, that the said widow intends to procure, or ha.s already procured, another laboror for the purpose of more speedily cutting down the said trees and timber. That she has repeatedly cut down or caused to be cut down trees and timber standing on said third part, and caused the same to be carried off said premises and sold, and has appropriated the proceeds of the sale thereof to her own use. That she hath repeatedly threatened to cut down all the trees and timber standing o.n said third part and to sell the same, and to remove the buildings standing thereon. 'And that the complainants have reason to believe, and do believe, that she intends to commit fur: ther waste upon said premises by cutting down the wood and timber now growing and being thereon, and selling .the same. That she has cut trees and timber from said third part more than sufficient for her own consumption and use, and for the express and avowed purpose of selling the same, and of appropriating the proceeds of the sale thereof to her o,wn use. That the trees and timber which she is now cutting down are not cut down for her own consumption and use, but for the purpose of selling the same for her own benefit. That the said widow is the owner in fee of another and large tract of wood land, situated near her place of residence, and hath no cause or necessity for cutting down any of the trees or timber standing on the said land so assigned to her for her dower as aforesaid. That the same is done by her for the purpose of realising money for her benefit. That the complainants, or one of them, have frequently requested her to desist from cutting said timber and trees, other than such as were necessary and to which she was entitled as her reasonable estovers, for her use and consumption, and to desist from committing waste and destruction.
    The bill prays that an account may be taken of the wood and timber which has been cut, and which she has caused to be carried away and sold; and that the said widow may be decreed to pay to the complaimants their proportion of the value thereof; and that she may be restrained by injunction from cutting down or destroying the timber or other trees standing, growing or being on the said third part, and from taking away, or causing to be taken away any wood lying or being on said premises, excepting such wood as she is by law entitled to cut and take as and for her necessary and reasonable estovers, and from selling any wood lying or being on said premises, and from committing any further waste ; and for such other and further relief, &e.
    The injunction prayed was allowed.
    On the 25th of June, 1850, a decree pro confesso was taken, on default of appearance, plea, answer or demurrer; and an order of reference to a Master, to take an account of the number and quantity of the trees, wood and timber that had been cut, and which had been carried away and sold, or which the said widow has otherwise disposed of; excepting such parts thereof as she may have used as and for her necessary estovers; and also the value thereof; and, also, what proportion thereof is due to the complainants, as and for their interest therein, in right of the complaimant, Mary Ann Brundage. And that notice of the time and place of such inquiry be given by the complainants or their counsel to the said defendant.
    The Master reported, that no evidence was produced before him of the number of trees cut. But he reports, that the defendant has cut upon, and carried away from the said third part sixty cords of cord wood, which she has sold or otherwise disposed of; and that the value thereof is $165. And that the complainants, in right of the complainant Mary Ann, are entitled to one equal fourth part thereof, equal to §41.25.

      Notice of the time and place qf the inquiry before the Master was served, according to the order of reference in that respect; but the defendant did not appear, nor any person in her behalf.
    The Master’s report is dated August 31,1850, and is marked filed September-3d, 1850. No rule to confirm the report nisi was entered.
    On the 9th of September, 1850, exceptions were filed to the report.
    At the December term, 1850, a motion was made, on the part of the complainants, to strike the exceptions from the files.

      A. V. Schenck in support of the motion.
    1st. The exceptions were not set down by the defendant for hearing at this term. 2 Mad. Ch. 390; 1 Newland Ch. Pr. 345; 1 Halst. Dig, 230.
    2d. Notice to the defendant to appear before the Master was ordered by the order of reference, and was served ; but the defendant did not appear before the Master. 5 John. Ch, 78; 1 Hoff. Ch. P. 250; 13 Peters, 359; 1 Paige, 145; 2 Han. Ch. 116; 1 Halst. Dig. 236; 4 Barb & Harr. Eq. Dig. 606, No. 16; 3 John Ch. 80.

      H. V. Speer, contra,
    referred to sec. 4, art. 14, of the rules of the Court; 2 Green’s Ch. 437.
   The Chancellor.

The order of reference, directed that notice of proceeding before the Master be given to the defendant. The case made by the bill was such, that an order for proof, only, might duly have been made, instead of a decree pro confesso and an order of reference; though the latter course was proper; and, this course being taken, it was thought proper to require notice to be given to the defendant of the time and place of proceeding before the Master. Notice was given, accordingly, and the defendant did not appear before the Master.

Rule 4 of Art. 14 of the rules provides, that where the complainant’s bill shall be ordered to be taken pro confesso, and there shall be a reference to a Master ordered, the complainant may proceed before the Master without notice to the defendant, and it shall not be necessary, upon the coming in of the Master’s report, to enter a rule to confirm the same nisi, or to set the cause down preparatory to further directions or to a final decree, unless directed by the Court, or the report shall be excepted to. Does this dispense with the entry of a rule to confirm the report nisi in a case where by the order of reference the complainant was directed to give notice of proceeding before the Master 1 I am inclined to think it does not. It is not a case under the 4th rule, because the complainant could not proceed before the Master without notice, as provided in that rule, for the reason that the order of reference expressly' required notice. Rule 6, Art. 14, shows, that an order to confirm a report nisi is not dispensed with by reason of the defendant’s having been notified to attend the Master and neglecting to do so; but, only, that the order nisi need not in that case be served on the defendant, and that the report shall become absolute of course, unless cause be shown to the contrary. It seems to me that in this case a rule to confirm the report nisi should have been entered on the part of the complainant. This was not done. This is sufficient to show that the motion to strike the exceptions from the files cannot prevail.

Having thus disposed of the motion, it is not necessary to express any opinion upon the question which was argued, whether, when exceptions are filed, in a case falling under the 4th rule, it is for the complainant to set the cause down preparatory to further directions or to a final decree, or for the defendant to set down the exceptions to be argued.

Independently of our rules, I think the practice is for the defendant to bring on the hearing on the exceptions. 2 Mad. Ch. 390, margin; 1 Newland’s Ch. Pr. 345. Filing exceptions is not, alone, sufficient cause against making absolute the order to confirm the report nisi ; an order for setting down the exceptions to be argued must also be obtained by the defendant; though it is said, in 1 Newland, 345, that either party may obtain this order. Our practice, I think, has been for the defendant to set down his exceptions to be argued. It may be that rule 4, above referred to, has changed the general practice of the Court. And I make a remark or two for the purpose of suggesting the inquiry whether such change has been made by this rule, and of calling the attention of the members of the bar to it.

It seems, from the terms of this rule, that, when the report is excepted to, the complainant cannot get a final decree without setting down the cause preparatory to further directions or to a final decree. The rule says, it shall not be necessary for the complainant to set the Gause down preparatory to further directions or to a final decree, unless the report be excepted to. This seems to show that when the report is excepted to, it is for the complainant to set down the cause; and if so, he sets it down, not upon the report only, for if there was nothing but the report it would not be necessary, under this rule, to set the cause down at all, but upon the report and exceptions, preparatory to further directions or a final decree ; and in this way, if the exceptions be overruled, the complainant may get a final decree at the term at which the cause is so set down; whereas, if the defendant is first to set down the exceptions to be argued, it would be a questian whether the complainant could get a final decree at that term, he having not seethe cause down. It may be that, if the defendant sets down his exceptions to be argued, and they are overruled, the case would then stand as a case under this rule in which no exceptions were filed, (considering overruled exceptions as no exceptions,) and that the complainant would then be entitled, under this rule, to his final decree, though he had not set the cause down ;■ or it may be that, notwithstanding the defendant sets down his exceptions to be argued, the complainant may also set the cause down preparatory, &c., at the same term, and SO be prepared to take his final deeree if the exceptions be overruled.

But it is clear, that if the complainant follows this 4th rule, and, when the report is excepted to, sets his cause down preparatory, &C., he will get his decree at that term if the exceptions be overruled. And it may be that this rule was adopted for the purpose of avoiding the difficulty and delay that might occur, or that was apprehended, from the defendant’s being required to set down his exceptions to be argued. These are mere suggestions. The motion is denied on the ground first stated.