text:
    Daniel Williamson v. Samuel Probasco.
    H. gave a mortgage to W., and subsequently gave a mortgage on the same lands to P. which was assigned to E. E. filed a forclosure hill, on his mortgage, stating the mortgage to W. and the priority of it, and prayed process against H. and W. W. did pot appear to the suit; he lived in New York, and an order of publication was made as to him. A deereepro coti/esso was taken against W.; and, at a subsequent term, on the report of a Master ascertaining the amount due on E.’s mortgage, a final decree was taken for a sale of the premises to pay E.’s mortgage, with the usual clause that the defendants be debarred from all equity of redemption. The premises were sold under the decree, and bought by P., who had notice of the existence of W.’s mortgage. W. afterwards filed a bill against P. for the foreclosure of his mortgage.

      SeM, that W.’s mortgage was not affected by the proceedings On E.’s bill.
    On the 6th of September, 1847, a bill was filed by Charles G. Everitt, against John H. Hoagland and wife and Daniel Williamson, for the foreclosure of a mortgage, dated June 13, 1846, given by John H. Hoagland and his wife to Samuel Probasco, for $2000, payable in one year, with interest semi-annually, on five tracts of land, and assigned by Probasco to the complainant in July, 1847 ; of which assignment the bill says that Hoagland had immediate notice.
    The hill states, that Hoagland and wife, on the 13th of March, 1846, gave a mortgage to the defendant Samuel Williamson, on the whole or some, part of the lands so mortgaged to Probasco, to secure the payment of $3000, which mortgage to Williamson was recorded on the 11th of May, 1846 *, hut that how much or whether any thing is owing to said Williamson on his said mortgage is unknown to the complainant; and prays that Williamson may exhibit and prove his said mortgage, and that whatever may he found due to him thereon may he paid out of the proceeds of the sale of the said mortgaged premises prior to the. payment of complainant’s mortgage. Process is prayed against Hoagland and wife and Williamson.
    It being made to appear that Williamson resided in New York, an order for publication as to him was made.

      In December, 1847, a decree pro confesso was taken on that bill against Williamson.
    In June, 1848, on the report of a Master, a final decree was taken in that cause, stating, that there was due to Everitt on his mortgage $2,183; directing the sale of so much of the mortgaged premises as would be sufficient to pay Everitt’s mortgage and costs, and that execution do issue, &c.; with the usual clause that the defendants stand debarred and foreclosed from all equity of redemption of, in and to so much of the said mortgaged premises as should be sold by virtue of said decree. A fi. fa. was issued accordingly, by virtue whereof the Sheriff, on the 30th of October, 1848, struck off and sold the whole of the said mortgaged premises to Probasco, for $2000 *, and the Sheriff delivered to Probasco a deed thereof, dated November 6,1848.
    On the 14th of December, 1848, the bill in this suit was filed, by Daniel Williamson, against Samuel Probasco, for the foreclosure of the said mortgage given by Hoagland and wife to Williamson.
    This bill, after setting out the mortgage of the complainant,. Williamson, states, that one Charles G. Everitt became assignee of a certain mortgage for $2000, given by Hoagland and wife to Samuel Probasco, subsequent to this complainant’s said mortgage, and with full knowledge thereof.
    It then states the proceedings, above stated, in the suit of Everitt against Hoagland and wife and this complainant, Williamson, on the said mortgage assigned to Everitt, and the sale of the premises to Probasco, and the Sheriff’s deed to him therefor ;• and states, that this complainant is informed and believes, that the said Sheriff’s deed purports to convey all the estate, right, title, and interest, not only of the said Hoagland and wife, but also of this complainant in regard to his said mortgage, without respect to the priority of his mortgage over that of said Everitt; whereas, he submits that the said Sheriff’s deed should havé been specially drawn, and the decree also, if it has not been so drawn, so as to preserve this complainant’s rights in his said mortgage; and that the said decree, sale and deed should have left his mortgage in full force and effect, and. in no way prejudiced by the said decree, execution and sale. This bill charges, that Probasco, before and at the said sale, well knew that this complainant’s mortgage was in full force; and that this complainant’s mortgage was admitted to be first in the said bill of said Everitt. That this complainant not wanting the money due on his said mortgage, did not put the same before the Master for allowance in the said decree; meaning to let the same remain a permanent lien on the said mortgaged premises; and that the purchaser of the premises might hold the same subject to the-said mortgage, on paying and continuing to pay the interest thereon.
    This bill prays that Probasco may be decreed to pay this complainant the amount due on his said mortgage ; and, in default of payment, prays foreclosure and sale.
    An answer was put in, and testimony taken.
    P. D. Vroom for complainant.

      W. Halsted for defendant.
    He cited Story’s Eq. Pl., section 790, 791, 636, 638, 412, 420, 422, and page 743, note; 4 Barb. Rep. 265; 1 Halst. Ch. 354.
   The Chancellor.

The bill of Everitt against Hoagland and wife and Williamson states and admits the mortgage to Williamson, and its priority. A decree pro confesso against Williamson on that bill, therefore, did not affect Williamson’s mortgage. The facts stated in the bill, and taken as confessed, showed the priority of Williamson’s mortgage. Williamson, by confessing the bill, simply assented that the complainant might proceed on the basis that Williamson’s mortgage was a lien on the premises prior to the mortgage held by Everitt. And Williamson’s not answering or producing his mortgage before the Master apprized the complainant in that suit that he, Williamson, assented only that the complainant might proceed with his suit against Hoagland and wife on the basis that his, Williamson’s, mortgage was a prior existing lien on the premises. The proceedings subsequent to the decree pro confesso against Williamson were, in reality, only proceedings against Hoagland- and wife; and could not affect Williamson’s interest, any more than if he had not been made a defendant in the bill.

I do not see that even if a stranger, having no knowledge of Williamson’s mortgage, had purchased at the Sheriff’s sale under the decree and execution in this case, Williamson’s rights would have been at all affected. He was in no fault. A mistake, or not well considered form of decree and execution in a suit which ¡admitted his priority, after he had declined putting in his prior mortgage, and assented that the complainant should proceed leaving his mortgage standing as a prior incumbrance, cannot defeat his mortgage.

If a stranger had bought under the decree, and execution in this case, in the form in which they were drawn, supposing he was buying the property free from incumbrance, he would no doubt be relieved from his purchase; but Williamson’s rights could not be affected by any mistaken form of final decree and execution, in a suit in which he declined being a party by declining, as he had a right to do, to proceed on his prior mortgage.

But in this case, Probasco, the purchaser at the Sheriff’s sale, knew of the prior mortgage of Williamson, and-bought subject to it; of this there is no doubt.

Williamson’s bill for the forecloseure of his mortgage alleges, that Probasco knew, at the time of the sale, that the Williamson mortgage was in full force and effect. Probasco denies that he knew it was in full force and effect. This is not a denial of knowledge of the existence of it. He speaks as to his knowledge of the existence of the Williamson mortgage in another part, of his- answer, and his language there is, that he denies that he had any knowledge or belief that Williamson had any mortgage at the time he, the defendant, let Hoagland have the $2000 intended to be secured by the mortgage to him.

The- decree and execution should have been more carefully drawn. But I do not see that. Williamson should be put to the costs and delay of setting aside that decree, or that his rights are-at all affected by.it.

Decree for complainant.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Edo P. Merselis v. Elizabeth Vreeland and others.
    ■J. gave a bond and mortgage to A., and died, leaving a will, by which he gave the use of all his estate, real and personal, to his widow, during her widowhood, and afterwards to his children; and, if his personal estate should not be sufficient to pay his debts, charged his real estate with the same, and directed so much thereof to be sold by his executor as would meet the debts; and appointed Ms widow executor. The personal estate was insufficient to pay the debts. On affidavit that the widow had become deranged, the Surrogate of the county granted administration with the will annexed. The Orphans’ Court of the county, on application of the administrator, made an order for the sale of the real estate by the administrator for the payment of the debts. At the sale, B. bought that part of the land which was covered by A.’s mortgage, and the administrator made a deed to B. on B.’s paying Mm the excess of the sale price beyond the] amount of A.’s] mortgage, and B. went into possession, and afterwards paid A.’s mortgage and had it can-celled of record; and the money so received by the administrator from B. was applied in payment of debts of the estate. The widow, afterwards, recovered from B. the lands so bought by Mm, in ejectment; and also recovered the mesne profits, from B. Held, That B. was entitled to relief.
    Bill filed June 20th, 1849, by Edo P. Merselis, stating, that, on the 4th of July, 1835, one John M. Vreeland, being indebted to one Asa A. Van Houten, in i$7**.19, gave to said A. A. Van Houten his bond, of that date, conditioned for the payment of said sum in one year, with interest. That, to secure the payment of said bond, the said J. M. Vreeland gave to the said A. A. Van Houten a mortgage of the same date, on the lands described in the bill, situated in Acquackanonk, in the now county of Passaic, containing 35 83-100 acres; which mortgage was duly recorded.
    That, in 1840, the said J. M. Vreeland died, leaving his widow, Elizabeth Vreeland, and five children, namely, Michael, Casper, Cornelius, John and Ann Eliza, him surviving; and leaving a will, hy which he directed that all his just debts be paid as soon as conveniently could he after his decease; and gave to his said widow the use of all his estate, real and personal, during her widowhood; gave to his five children the whole of his estate, to be equally divided among them, when the youngest should attain twenty-one, and his said widow should have done with the use of it; and, in case his personal estate should not be sufficient to pay his debts,, charging his real estate with the same, and directing so much thereof to be sold from time to time, by his executors, as would meet the payment of his debts; directing, that, in case any of his children should die under-twenty-one and without issue, the portion devised and bequeathed to such child should be equally divided among the rest of his said children, equally; and appointing the said Elizabeth, his-widow, and Nicholas It. Terhune, executors of his will.
    That said N. R. Terhune, in due form of law, renounced theexecutorship, and that the said Elizabeth proved the will, and took upon herself the burthen, &c., on the 21st of September, 1839.
    That the said Elizabeth administered part of the estate; and, the personal estate being insufficient to pay the debts, and among the rest the debt secured by said bond and mortgage, it became necessary to take some steps to procure a sale of the real estate, or some part thereof, to pay the said debts. And the said Elizabeth having become deranged in her mind, and unfit to manage the said estate, the family thought it advisable that administrators with the will annexed should be appointed, so as to have the said estate settled.
    That two of the said children, Michael and Casper, being of age, and all the rest under age, application was made to the Surrogate of Passaic to grant said letters of administration; and, on affidavit made of the situation of the said Elizabeth, the said Surrogate, on the 20th of May, 1840, granted letters of administration with the will annexed to Michael Vreeland, one of the sons, and Cornelius M. Vreeland, the brother of the testator. That Casper, the other son of age, declined proving the will, on account of his being involved in his circumstances at that time, but approved of and desired the granting of said administration to the said other persons.
    That the said administrators with the will annexed proceeded in due course of law to administer the estate; and having filed their account in the Orphans’ Court of Passaic, and there being; a deficiency of personal estate, the said Court ordered a sale of the real estate of the testator to pay his debts.
    That thereupon the said administrators with the will annexed set up certain parts of the real estate for sale at public vendue, according to law, that is to say, all those certain lots &c., (describing them,) one lot containing 10 29-100 acres, adjoining lands of this complainant; the other lot containing 8 11-100 acres, also adjoining lands of this complainant, which last lot was a part of the land described in the said mortgage. And thereupon, the complainant bidding for the same $1,114.38, and no person bidding more, the same was openly, publicly and fairly struck off to the complainant, for that sum, on the 8th of February, 1842; and the said administrators with the will annexed executed and delivered to the complainant a deed for the said lots; and the complainant thereupon took possession thereof, and continued to occupy the same until he was removed therefrom as after stated.
    That the said Elizabeth was present at the said sale, and did not forbid the same, or make any statement that the said administrators had no right to sell, or that she intended to dispute the title of purchasers at said sale; nor did she do any act by which the complainant could be put on his guard, or that should lead the complainant to doubt that a good title could be given by the administrators; and the complainant believed at the time that he purchased a good title to said lots.
    That after the complainant had purchased said lots, and in November, 1844, while he was in possession of said lots, and no objection being raised to the said sale by the said Elizabeth, or any other person, and after the complainant had paid to said administrators the difference between the amount due to said A. A. Van Houten on the said bond and mortgage and the amount of the complainant’s said bid, the complainant went to the said A. A. Van Houten and paid him the amount due on his said mortgage and took the same, and tore off the seals from the said bond and mortgage, and took his said mortgage to the Clerk’s office of Passaic county and had it cancelled of record, on the 16th of November, 1844.

      That, on the 4th of May, 1842, when the said deed was delivered by the said administrators to the complainant, there was due to said A. A. Van Houten on the said bond and mortgage #745,46, and that the complainant paid the balance of said purchase money to the administrators, amounting to #868.92, and that the whole of this sum was applied by them to pay the debts of said J. M. Vreeland, except the sum of #100, which, as the complainant has been informed and believes, was applied by the said administrators, or one of them, to pay the funeral expenses of the said Michael Vreeland, who died, and the balance, being #61, was paid by the said administrators, or one of them, as follows : #16.26 to the said widow, Elizabeth, and the same sum to Cornelius, John and Ann Eliza, each, to purchase clothing for them.
    • That the said Elizabeth gave no notice of her intention to dis. pute the complainant’s said title until the complainant had can-celled the said mortgage of record and she had learned that it was so cancelled, when she commenced an ejectment against the complainant, returnable to the May term, 1846, for the recovery óf the land so purchased by the complainant; and the said suit was- pending until April term 1849, when the Supreme Court decided in favor of the said Elizabeth, in the said suit, on the ground, as the complainant has been informed, that the Surrogate had no right to grant such letters of administration; and that, immediately thereafter, the costs in said suit were taxed, and an Kdberefac. pos. was issued, and possession of said lands delivered to the said Elizabeth; and the complainant paid the hosts of said suit. <
    That the said A. A. Van Houten has lately executed and delivered to the complainant his deed of assigajnent, purporting to bear' date November 16,1844, by which he assigned to the complainant the said bond and'mortgage.
    That after the death of said testator the said Elizabeth accepted the said devises and bequests to her in the said will in lieu of dower; and that by such acceptance all the right of dower of the said' Elizabeth in the lots described in said mortgage hath been lost and merged; and the complainant is entitled to have the same sold free from the dower of the said Elizabeth.
    That since the death of said testator two of his sons, Michael and Casper, have died, without being married and intestate, by reason whereof their interest descended to the said Cornelius, John and Ann Eliza Yreeland, who are now all of age.
    That the right of said Elizabeth and of her children under said will in and to the real estate was by said will expressly charged with the payment of the debts of the said J. M. Vreeland; and that the personal estate was wholly insufficient to pay his debts.
    That the said Elizabeth has lately commenced an action of trespass against the complainant in the Circuit Court of Passaic, returnable to the term of June, 1849, for the recovery of the mesne profits of the land so purchased by the complainant, and that the damages are laid in that suit at $1,800. And the complainant submits, that the said sum of $868.92, paid by him on the said sale, over and above the amount due on the said mortgage at the time of the said sale, and appropriated to pay the debts of said testator, and to the support of his children, and paid to the said Elizabeth as before stated, with the interest thereon, ought to be applied as an offset to the use of said land by the complainant; and that an account should be taken of the same; and that, if the said rents and profits should amount to more than this sum with interest, then that the complainant, as mortgagee in possession, should be charged with such excess, and the same should be deducted from the interest due and to grow due on the said mortgage.
    That the money mentioned in the condition of the said bond and mortgage has not been paid to the complainant by the said Elizabeth, or by any other person; but that the same, together with the said sum of $368.92, so paid by the complainant, is now due the complainant, with a large arrear of interest.
    That while he had possession of said lands he greatly improved the same; and he submits that such improvements ought to be allowed- to him against the rents and profits.
    The bill prays, that the said bond and mortgage may be decreed to be valid' and subsisting 3 and that tbe said Elizabeth Vreeland, Cornelius Vreeland, John Vreeland, Ann Eliza Vreeland and Daniel A. Vreeland, some or one of them, may be decreed to pay to the complainant the amount due thereon, or that they may be foreclosed &c.; and that they may be decre.ed to deliver to the complainant possession of the said mortgaged premises 3 or that said premises may be decreed to be sold, to pay to the complainant his said debt and interest 3 and that it may may be decreed that the money paid by the complainant on the said sale, over and above the amount due on the said mortgage, shall be paid to the complainant by the defendants or some of them, or that the same shall be offset against the claim of the said Elizabeth for the rents and profits; and that the said Elizabeth may be injoined from further prosecuting the said action of trespass 5 and for such other and further relief &c.
    The injunction prayed was allowed.
    Elizabeth Vreeland, in her own right and as executrix, Cornelius, John and Ann Eliza Vreeland put in their joint and several answer.
    The injunction was afterwards dissolved, and the action for mesne profits proceeded, and a verdict and judgment was rendered thereon for $450.
    Testimony was taken in this case.

      A. S. Pennington and W. Pennington for the complainant.
    They cited 2 John. Ch. 504; 4 Ib. Silverlake Bank case; 1 Green’s Ch. 151, 322; 16 Conn. Rep. 260; 2 Sandford’s Ch. 9; 1 Story’s Eq. Jur. 122, et seq.; Pow. on Con. 196; 1 Fonbl. Eq. 163, new ed. and notes; 6 John. Ch. 395.

      Hopper and Zabriskie for the defendants.
    They cited Story’s Eq. Jur. sec. 984; 1 Green’s Ch. 117, 125, 145; Saxton’s Ch. 205; 2 John. Ch. 51, 60; 2 Green’s Ch. 513, 516; Saxton’s

      Ch. 100; 111; 14 Pick. Rep. 98, 104, 5; 4 Wash. C. C. Rep. 301; 1 Peter’s, 13 to 17; Story’s Eq. Jur. sec. 111, 115, 136, 1, 8; Eden on Inj. 22; 2 Kent’s Com. 491, 4th ed.; 9 Mees. & Welsb. 54; 18 Wend. 415; 11 Peters, 1; 12 Ib. 32; 2 Green’s Ch. 497; 1 Ib. 145, 7; 1 Zab. Rep. 395; 2 Smith’s leading cases, 467.
   The Chancellor.

The plain equity of this case is, that the complainant should have relief to the extent to which the money paid by him was applied in payment of the debts with which the lands of the estate of the testator were charged, including the mortgage. A reference will be ordered.

Order accordingly.


text:
    Jacob Canfield, Appellant, and Philander Ball, Executor of Lewis Tichenor, deceased, Respondent.
    A devisee whose share of the estate as one of the heirs at law would be greater than the share devised to him is incompetent to testify against the will. Such a devisee, on being rejected as a witness, made a deed to anotherperson of all his interest in the estate, either as heir at law or as devisee, and was again offered as a witness against the will; but, it appearing that the deed was without consideration, anil was made with an understanding between him and the grantee that a re-conveyance should be made to him, he was again rejected as a witness.
    The allowance of costs to the caveator though he fail to support the caveat has become too general.
    The Orphans’ Court of the County of Essex, on the 18th of October, 1850, admitted to probate a paper writing purporting to be the will of Lewis Tichenor, deceased, late of said County ; and ordered the larger portion of the costs to be paid by the caveator. ' ’
    On the hearing before that Court, Enos Tichenor, offered as a witness for the caveator, was rejected. ■
    The case comes before this Court on Appeal from the order admitting the will to probate, and the order in reference to costs, and the rejection of Enos Tichenor as a witness against the will.
    F. B. Chetwood for the Appellant.

      A. S. Hubbell and A. Whitehead for the Respondent.
   The Chancellor.

The formal execution of the will, and the testamentary capacity of the testator, are clearly established by the concurrent testimony of the three subscribing witnesses.

The effort of the caveator was, to defeat the will by showing that the making of it was induced by an improper interference and influence by certain persons, relatives of the decedent, who had long lived with him, and to whom the writing gives an interest in the estate.

The writing gives (stating its provisions) to Sarah Campbell, (his sister,) a piece of salt meadow, of four or fiye acres, to be sold to settle the estate, and the remainder of the money to be paid to her; and all his household furniture and cattle, and the use of all the upland property and house whieh the decedent’s father left him, supposed to be 44 acres, during her life; and divides this land after her death among relatives; giving Charles Campbell, her sister’s son, eight acres of it; to Enos Tichenor, his brother, the use of eight acres of it during his life, and after his death to Sarah Gould, for her life ; and after death to her child, Charles Gould. It appoints Philander Ball Executor.

The evidence on the part of the caveat shows, that Sarah. Campbell, William Tichenor, Charles Campbell, Maria Campbell and Maria Gould, lived with the decedent at the time the writing was executed, and before and after.

Witnesses on the part of the caveat testify to declarations .of the decedent, in his life time, before the writing was executed,, that he did not want to make a will,” and ££.did not calculate to make a will.”

The testimony fails, entirely, to show that the will was procured to be made by any such influence as should defeat it.

Enos Tichenor, a brother of the decedent, and an heir at law, the decedent having no children, was called on behalf of the caveator.

The Orphans’ Court rejected him as a witness against the will. In this I think they were right. His interest as heir, if the will could be defeated, would be much greater than the interest the writing gives him.

An instrument under seal was then produced, on the part of the caveator, executed by Enos Tichenor, by which he <c remised, released and quitclaimed” unto Samuel Wilcox, an entire stranger to the estate, his heirs and assigns, all the right, interest, &c., of the said Enos in the estate of the decedent, both real and personal, as heir at law of said decedent, or as devisee under any will of said decedent. Enos Tichenor was then again offered as a witness; and was again rejected by the Orphans’ Court. The words granted, bargained, sold,” after the word Hath,” and before the word “ remised,” were then immediately interlined in the deed, and the deed was thereupon immediately re-acknowledged by Enos Tichenor, and another certificate of acknowledgment endorsed thereon by a Master in Chancery; and Enos Tichenor was again offered as a witness, and again rejected.

It appears by the facts and evidence in the case that this instrument was a mere fiction; that it was clearly understood between Enos Tichenor and Wilcox that Wilcox was to re-convey to Enos Tichenor; that Wilcox paid no consideration; and that, in fact, it was a fraudulent transaction for the purpose of putting, or attempting to put Enos Tichenor, for the moment, in a position to testify in support of an interest which he felt he had not really parted with by the instrument, inasmuch as it was to be re-conveyed to him when it should have performed its office of enabling him to testify. And though in law the deed was good as between him and Wilcox, yet Enos Tichenor relied so implicitly on a re-conveyance from Wilcox that he cannot be held to have been in a position, on the execution of the instrument, to testify disinterestedly. The deed was conceived and executed in fraud, and for a purpose which was fraudulent both in Enos Tichenor and in Wilcox, against those who were interested in having the will proved. At all events, a witness under such circumstances would be entitled to no credit whatever. The facts would not only effect his credibility, but destroy his credit altogether.

Again: this Court would not reverse for the rejection of this witness. The most it would do would bo to direct his examination to be now taken, to be submitted to this Court. But this should not be done when it is clear that no credit whatever would be given to him.

As to the costs, I think this a fit opportunity to say, that the allowance of costs to the caveator, though he fail to support his caveat, has become too general; so general as to induce groundless opposition to wills. The Orphans’ Court, in this case, have done the community a service by the course adopted in reference to the costs. It is not necessary for me to say whether an appeal in reference to costs only be allowable.

Decree affirmed,


text:
    L. Q. C. Elmer, Attorney General, ex relatione Isaac Van Wagenen and others v. The Newark Plank Road and . Ferry Company and others.
    An act incorporating a Plank Road Company authorized the Company to drive piles, and erect piers, wharves, &c., in the Passaic river; Provided, that the free and uninterrupted navigation of vessels in said river be not thereby prevented by any bridge or other obstruction; and requiring the Company to keep a ferry-boat, propelled by steam or other power, for the safe transportation &c.

      MM: That the act authorizes the Company to extend their works beyond the banks of the river; but only to such extent that a ferry-boat of suitable dimensions may reach the wharves or piers at low water, and be safely received and held at the ends of the piers.
    On a bill and information for an injunction, the Court directed notice of the application to be given to the defendants. On the day fixed for the hearing, the bill, and the affidavits in support of it, and the answer of the defendants, and affidavits in support of it were read.
    The case is stated in the opinion delivered by the Court.

      A. Whitehead and W. Halsted, for the motion.
    They cited 2 Bl Com. 346; 4 Dall. 304, 316; 4 Hill, 76, 83; 1 Dall. 150; 2 Stark. Rep. 511; 1 Carr. & Marsh. 272; 5 Bac. Ab. 150, Nuisance; 4 Adolph. & Ellis, 384; 1 Bouvier’s Law Dict. 566; Angel on Tide Waters, 210; 11 Peters, 421; 9 Howard, 172; Leaming & Spicer, 125; Story’s Eq. Jur. sec. 921; Saxton’s Ch. Southriver case; 12 Peters, 91; 1 Bro. Ch. 588; 1 Ves. 140; 10 Ib. 192; 1 Paige, 197.

      D. A. Hayes and F. T. Frelinghuysen contra.
    They cited Smith’s Com. on Stat. Const. Pt. 439, 464, 451, 441, 479, 446; Dwany on Stat. 703; 1 Bl. Com. 91; Angel on Tide Waters, 105, 108, 111, 117; Saxton’s Ch. 384; 2 Green’s Ch. 136, 141, 384; Eden. on Inj. 262; 1 John. Ch. 18.
   The Chancellor.

On the 24th of February, 1849, the Legislature of New Jersey passed an act entitled “ An act to incorporate the Newark Plank Koad and Ferry Company.” By the 8th section of this act the said Company are authorized to survey, lay out and construct a plank road, to commence in the city of Newark, east of Broad street, and thence passing by the most convenient and direct course to the hank of the Passaic river near the old ferry, and across the meadow between said Passaic and Hackensack rivers, and through the county of Hudson, in the most eligible route to its point of termination in said county and opposite the city of New York; and the said section further provides, that it shall he lawful for the said Company at any time to drive piles and erect or build piers, wharves, platforms, ferry stairs, or other works necessary for the said road and ferries thereon, in the said Passaic and Hackensack rivers: Provided always, that the free and uninterrupted navigation of vessels in said rivers or either of them is not thereby prevented by any bridge or other obstruction in said rivers, in any manner whatever.

The 11th section of the said act provides, that the said Company shall keep and maintain not less than two good and sufficient ferry-boats, propelled or moved by steam, horse-power or otherwise, for the safe transportation of horses, carriages, passengers, goods and other commodities, one boat on each of the said livers, at the respective ferries, and persons capable of managing the said boats; and the said Company shall cause to be put a lamp at the extreme point of each pier at said ferries, which said lamps shall be lighted every evening, before dark, and continue lighted until daylight next morning.

The bill prays an injunction restraining the said Company from projecting piers, wharves &c., into the Passaic river, oa either side thereof, and from obstructing, by any -works at the ferry across the Passaic, the free and uninterrupted navigation of the said river.

The Company have already driven piles in the river, on each side thereof, to some distance from the banks ; and have thereby indicated the distance to which they intend to project piers into the river. The bill claims that the Company have no right to extend piers into the river to the distance so indicated, nor to obstruct the navigation of the river at all, by any works extending beyond its banks.

The act contemplates, and provides for a ferry across the river by means of a steamboat, and such a ferry as will be safe for the transportation of horses, carriages, passengers, goods &c., and provides, that the Company may drive piles, and erect or build piers, wharves, platforms, or other works necessary for the said ferry. The Passaic river, at low water, leaves margins of earth bare, between its banks and low water mark. This must be presumed to have been known by the Legislature; as also must the manner in which steamboats are used for ferries.

I think it clear that the act gives the Company the right to extend their works beyond the banks of the river; and that the position, taken by the complainant, that any, the least extension beyond the bank, is prohibited by the proviso to the 8th section of the act is not maintainable. The proviso is, not, that the river shall not be at all obstructed, but, that the free and uninterrupted navigation of vessels in the river shall not be prevented by any bridge or other obstruction. The language of the proviso assumes, that the works authorized will be an obstruction to the river; but provides that no such obstruction shall be built or erected as would prevent the free and uninterrupted navigation of vessels in the river.

I think the true construction of the act is, that the Company are authorized by it to build their wharves or piers in the river to such extent only that a ferry-boat of suitable dimensions may reach such wharves or piers at low water, and such other works, beyond the ends of the wharves or piers, as may be necessary for safely receiving their ferry boat, and holding it at the ends of the piers for the safe and convenient entering upon and leaving said boat. That it was the intention of the Legislature that the river should be ferried, by a steamboat or other boat, as far’ as fairly practicable.

I am of opinion that the plan of the Company, mentioned in the information and bill and in the answer of the defendants, upon which the Company propose to construct their wharves, piers and other works in and over parts of said river, and upon which they were proceeding to construct the same at the time of the filing of the bill and information, extends into the river to the obstruction of the navigation of vessels therein beyond what is necessary for the purposes aforesaid, and beyond what is contemplated by the act of incorporation.

An injunction will, therefore, be allowed, restraining the defendants from constructing their works in and upon the said river upon the plan above mentioned; and from extending their piers or wharves into the said river beyond a point on each side thereof which may be reached by a ferry-boat of suitable dimensions at low water.

Order accordingly.


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    David Coddington, Jane, his wife, and others v. The Executors of the will Bennet Havens, deceased.
    H., by will, gave six legacies to six individuals respectively, by their respective names; and then gave §500 to the Presbyterian Church in the Clove, and the interest paid to their minister annually, the principal to remain good as long as there is any Church thereand then provided as follows: “ If there should be any more of my estate left after paying out the legacies, I give and bequeath one-third to my said daughter, and the other two-thirds to be equally divided among all those that I have given legacies to.

      Hein, that the said Church was not entitled to a share of the said residue.
    Bennet Havens, late of the township of Wantage, in the county of Sussex, died, on the 23d day of December, 1845, leaving a will, dated July 12, 1830, by which, after directing his debts and funeral expenses to he paid, he gave to “ Thomas C. Ryerson, trustee of and in trust for his daughter Jane T. Havens, $35,000, to be paid to the said trustee, by his executors, within six months after his decease; and directed that the said trustee constantly keep the said sum of money at interest, on bonds well secured by mortgage; and receive the interest annually, or oftener, and pay the same to his said daughter Jane, for her sole and separate use; and devised to Ms said daughter the use of Ms farm and house and stock as long as she should remain unmarried. And gave to James C. Havens $1,000 and the use of the said farm after the marriage of his daughter Jane during his natural life, and if he should die without issue, then to he divided among the children of the testator’s sister, Abigail Mun-sell. And gave $1,000 to Jonathan H. Munsell; $1,000 to Henry Munsell; to the wife and children of Matthias Strader $2,000, to he laid out in new lands for their use and benefit; and to Elizabeth Potter $1,000; and to Havens Titsworth $1,000, to he put at interest and paid to him when he arrives at twenty-one: the interest to be laid out in schooling him.
    He then gave and bequeathed “ $500 to the Presbyterian Church in the Clove, and the interest paid to their minister annually, the principal to remain good as long as there is any Church there;” and then provided as follows : CiIf there should be any more of my estate left after paying out the legacies, I give and bequeath one-third to my daughter Jane, and the other two-thirds to be equally divided among all those that I have given legacies to.”
    The will appointed John Titsworth and James C. Havens executors.
    The bill states, that the testator died without leaving any surviving issue.
    That the executors proved the will &c.
    That on the 20th of March, 1846, the personal property was appraised.
    That the legacy of $500 given to “ the Presbyterian Church in the Clove,” was intended for a religious society or congrogagation of the Presbyterian denomination, which at the date of said will and still worship at a church then erected and still standing, situated at a place called the c{ Clove,” in the township of Wantage, of which congregation the said testator was a member. That the corporate name of the Said society was, and still is “ The Trustees of the First Presbyterian Congregation of Wantage;” and that there is not, to the knowledge of the complainants any other religious society, church or congregation to whichTtlie said description in the said will will apply.
    That in August, 1847, the accounts of the said executors were settled, separately. That the balance found in the hands of the said James C. Havens was $56,997.81; and the balance found in the hands of the said John Titsworth was $14,481.84.
    That the balances in the hands of the said executors amounted to $71,429.65, over and above the debts, expenses, and the legacies given by the will; which sum is to bo distributed under the residuary clause of the said will.
    The bill states that the complainants are informed’and believe, that the said “ The Trustees of the First Presbyterian Congregation of Wantage” claim to be entitled under the said will to a share of the said two-thirds of the said residue. But the complainants submit, that the said Trustees are not entitled to any part of the said two-thirds of the said residue.
    The bill prays that the clear residue maybe ascertained; and that such share thereof as may appear to be due to the complain - ants may be decreed to be paid to them.
    Answers were put in; and the cause wag heard on the bill and answers.

      P. D. Vroom and B. Haines for the complainants. They cited Ang. and Ames on Corp. 4.

      W. Halsted for the Church.
    He cited 4 Wheat. 626; Ang. and Ames on Corp. 2, 5; Cooper’s Rep. 79; 2 Howard’s U. S. Rep. 497.
   The Chancellor.

The legacy to the Church is not a general legacy of §500, to be disposed of at the pleasui’e of the Church, but the provision in respect to it is peculiar; the interest of this sum is to be paid to the minister annually, and the principal to remain good as long as there is a Church at the place named. The testator, in effect, puts this $500 in the Church as trustees for a special purpose. If the Church is to take “a share of the residue, under the residuary clause, it will take it absolutely, without any limitation, and without any direction as to how it shall be used, but to be used and disposed of at pleasure. I cannot think that the testator, after having, in reference to the comparatively small sum of $500, given the direction contained in the will, could have intended to include the Church in the residuary clause, and to give to it so large a sum as its share of the residue would amount to, to be used and disposed of at pleasure.

The words u those,” in the residuary clause, should,.in its connection, be'regarded as applying to persons, and the clause should be read, u all those persons that I have given legacies to.” The word i! person” does not naturally apply to corporations, and, as a general rule, does not include corporations. I am of opinion that the Church is not entitled to a share of the residue.

Decree for complainants.


author: The Ordinary.

text:
    Administrators of Stevenson, Appellants, v. Philips, Respondent; on appeal from Orphans’ Court.
    The Orphans’ Court opened the accounts of administrators for the purpose of correcting a particular error alleged; and afterwards made an order as to that particular matter. This Court, on appeal from such order, will only aet as to that particular' matter; and will not open the accounts generally.

      S. R. Hamilton for appellants.

      W. Halsted for respondent.
   The Ordinary.

Philips obtained an order of the Orphans’ Court opening the account generally. This order was reversed by the Supreme Court on certiorari.

He afterwards obtained an order of the Orphans’ Court opening the account for the purpose of correcting a particular error alleged. The Orphans’ Court afterwards made an order as to that particular matter. From that order this appeal is taken.

This Court will only act as to the particular matter, or order appealed from. It will not open the accounts generally.


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    James B. Cox v. Asa C. Dunham and others.
    If the bill shows sufficiently, that the personal and real estate levied on under a judgment and execution is claimed by others under transfers and conveyances from the defendant in execution; and the transfers and conveyances are sufficiently charged, to be fraudulent, the Court will remove out of the way of the judgment creditor the hindrance or impediment which such claims by others interpose in the way of or against a sale without sacrifice; and the judgment creditor is not bound to go to a trial at law of the right of property in the personal estate levied on. ]
    A judgment debtor who has transferred personal property for the purpose of defeating a creditor cannot, after a judgment creditor has levied on it, compel such creditor to go to a trial at law to determine whether the properly is not his, notwithstanding the transfer, with a view to having it sold before lands levied on.
    The bill, filed April 3d, 1850, states, that in May, 1835, James B. Cox, the complainant, recovered against Asa C. Dun-ham a judgment in the Supreme Court, for §1,219.21 damages, ■and §40.78 costs. That a fi. fa. de bonis et terris was issued thereon, returnable to the term of September, 1835, of said Court; and that the said writ of fi. fa. was returned a nulla bona.”

    That on the 10th of January, 1850, the said Cox, the complainant, caused to be issued a second y?, fa. de bonis et terris on the said judgment, returnable to the term of April, 1850. That this writ was returned with the following levy : cc By virtue of the above stated writ, I have levied on the following property of Asa C. Dunham, viz: 3 stacks of wheat, 2 stacks of oats, 14 acres of green grain in the ground, 12 head of cattle and 190 sheep; subject to all prior legal jncumbrances ; value $1; January 18, 1850.” I have also levied, by virtue of the said writ, on the right and title of the said Asa C. Dunham to the following real estate, viz: (describing a number of lots and parcels of land) : all subject to prior legal incumbrances ; value $1. March 4, 1850.
    That shortly before, and at the time of the recovery of the said judgment, to wit, in May, 1845, the said Dunham owned and possessed sundry goods and chattels, and was the owner in fee of tlio lands and tenements in the hill after described.
    That the said Dunham, being so seized and possessed of real and personal estate, to the value of $6,000 and upwards, on or about September 16th, 1834, in order to defeat the complainant of his said claim, and to protect the property of said Dunham against the said claim, and to secure it to his own use, combining with one Azariah W. Dunham and Nehemiah Dunham, his brothers, and with other persons unknown to the complainant, sold and delivered to the said Azariah and Nehemiah, and to divers other persons unknown to the complainant, large quantities of personal estate, of the value of $1,000 or thereabouts; which property ought, in justice, to he yielded up by the said Azariah and Nehemiah to satisfy the said claim of the complainant. And the complainant has been informed and believes, and so charges, that the said sale of the said personal property was without any just consideration, and intended for the sole purpose of depriving the complainant and other creditors of the said Asa of his and their just claims.
    And that the complainant has been informed and believes, that the said Asa, on or about the day and year last aforesaid, combining with tho said Azariah and Nehemiah, and others unknown to complainant, by his certain deeds of bargain and sale, executed by him to the said Azariah, purporting to bear date on the 16th of September, 1834; tho first, purporting to he for tho consideration of $2,300, in tho words and -figures and in substance as follows : (setting out the deed. It is a deed for several parcels of real estate ; 1st, The equal undivided half of two lots, the first of which, with the building, is bounded as follows: giving the boundaries, containing 69 1-2 acres, excepting thereout four several lots theretofore sold and conveyed to Michael Hagerty, Alexander Probasco, Joseph Y. D. Stout and James W. Hope). The second of said lots is bounded as follows : (giving the description, containing 94 12-100 acres.) Also, all the undivided half of that certain parcel of land (describing it) containing 65-100 of an acre. Also, the equal undivided half of all that certain parcel of land, (describing it,) containing 11 84-100 acres. Also, all those other two lots or parcels of land (describing them: the first containing 5 13-100 acres; the second containing 24 25-100 acres.) The deed is a deed in fee, with full covenants of warranty.
    The second deed is of the same date, to Nehemiah Dunham, for the consideration therein stated of $500; and conveys three lots of wood land, one containing 9 86-100 acres; another 9 60-100 acres; and the other 5 26-100 acres; and two other lots; one containing 11-2 acres; the other containing 8-10 of an acre; excepting out of the last two lots certain parcels thereof theretofore conveyed to John Green and Israel Smith, respectively. This is, also, a deed in fee, with full covenants of warranty.
    That the third conveyance, purporting to be for the consideration of $2,600, is as follows: (setting it out: it is a deed, dated June 30th, 1834, from John W. Bray and wife, John B. Taylor and wife, to Asa C. Dunham, for a number of lots or parcels of land.
    That the 4th conveyance, purporting to be for the consideration of $800, is as follows: (setting it out): a deed from Asa C. Dunham to Azariah W. Dunham, dated October 17th, 1834, for a lot of land containing 77 acres, which John W. Bray and wife and John B. Taylor and wife conveyed to the said Asa C. Dunham, by deed dated June 30th, 1834. It is a deed in fee, with full covenants.
    That the complainant has been informed and believes, and charges, that in or about the year 1834, the said Asa C. Dun-ham was security for John W. Bray and John B. Taylor, for about $2,500, including a part of the above mentioned claim of the complainant; and that, in order to indemnify and save harmless the said Asa C. Dunham, and to enable him to pay the said security debts, as well to the complainant as others, the said Bray and Taylor, with their wives, on the BOth of June, 1834, executed and delivered to the said Asa C. Dunham the before mentioned deed from them to him of that date.
    That the complainant has been informed and believes that the said Asa C. Dunham never paid any of the said security debts out of the proceeds of the sale of the land so conveyed by said Bray and Taylor to him; but, on the contrary, afterwards, to wit, on the 16th of September, 1834, fraudulently, and without any consideration having been actually paid, sold and conveyed a part of the same to the said Nehemiah Dunham, and the residue thereof to the said Azariah W. Dunham; who hold the same for the benefit and advantage of the said Asa C. Dunham, and in order to defraud the complainant and others the creditors of the said Asa, and to prevent and hinder him and them from recovering their just claims against the said Asa.
    That the complainant has been informed and believes, and so charges, that, notwithstanding the said sale of the said personal property and the said deeds of conveyance of the said real estate by the said Asa to the said Azariah and Nehemiah, the said Asa has ever since remained in and had the possession of the whole of said property, real and personal, receiving and enjoying the rents, income, proceeds and profits thereof.
    That the complainant has frequently applied to the said Asa, Azariah and Nehemiah for the payment of his said judgment; and that they should deliver into the hands of the sheriff the said real and personal property, so fraudulently assigned and passed over by the said Asa to the said Azariah and Nehemiah, and by them now held and claimed; and that the said Azariah and Nehemiah should permit the said sale, transfer and conveyance to bo declared void, and the said real and personal estate to be sold to satisfy the said judgment of the complainant. But that .they have wholly neglected and refused to pay the said judgment, or to deliver into the possession of the said sheriff the said real and personal property, or to allow the said conveyances to be set aside as null and void, and have and do absolutely oppose the execution of the said second writ of fi. fa., and threaten to prosecute the sheriff should he make sale of the same.
    The bill prays, that the defendants, Asa, Azariah and Nehemiah, or some of them, may be decreed to pay to the complainant the amount of his said judgment, interest and costs; and that the said conveyances and sales made be declared null and void, and that the said real and personal property be sold, and the proceeds applied to the payment of the complainant’s judgment. That the defendants account for the rents, issues and profits of the said real estate, and for the proceeds of the sale of said personal estate by them or any of them heretofore made, or that may hereafter be made, and for such other and further relief &c.
    To this bill a general demurrer was. put in.

      A. Wurts and P. D. Vroom in support of the demurrer.
    They cited 1 Story’s Eq. Jur. sec. 33, 49, 72; Cooper’s Eq. Pl. 124, 8, 9, 351, 2; 1 Smith’s Ch. 201; Saxt. Ch. 298; 1 Story’s Eq. Jur. sec. 64a, 27, 529; Jerem. Eq. 549, 550.

      W. Halsted, contra.
    He cited 3 Green’s Ch. 61; Saxt. Ch. 693; 6 John. Ch. 360; 4 Ib. 293; Dev. Eq. Rep. 537; 2 Paige, 333; 17 Conn. Rep. 283; 5 Cowen, 580; 4 Ired. 291, 494; 10 Conn. Rep. 137; 5 Gill & Johnson, 19; 18 Wend. 236; 3 Paige, 365; 10 Ib. 219, 601; 1 Ib. 637; 4 Denio, 262; 2 Story’s Eq.Jur. sec. 1216; Rev. Stat. 922; 19 Pick. Rep. 231.
   The Chancellor.

The bill shows sufficiently, that the personal property levied on is claimed by others, under transfers from Asa C. Dunham; and that the lands levied on are claimed by others, under a^deed from^Aga^C.fDunham; and the transfers and deed are sufficientlyjcharged to be fraudulent. In such cages, it is within the province of this Court to remove out of the way of the j.udgment|creditoro the hindrance pr impediment so interposed, on the ground, that by a sale while such impediment exists the creditor would not realize the value of the property. And the judgment creditor is not obliged, before coming into this Court, to go to a trial at law of the right of property in the personalty levied on, with the view of having the transfer of it declared void, so that it may bo sold before the lands. Such transfer is good against the debtor, and the creditor may let it stand as good, if he pleases, and attack the conveyance of the land.

If any of the personal property levied on under the second fi. fa. is not included in the transfer, such part should be sold first. The bill is not, perhaps, as clear as to this as it might have been. An answer may show how this is.

Demurrer overruled.


text:
    Jeremiah Baldwin v. Edward Campfield.
    • 'On a judgment and execution against A. and B,, the dwelling-house of A. wns levied on and advertised for sale. At the request of A., C., his son-in-law, attended the sale, and made the highest bid; and the sheriff made a deed to C. The sum for which the property was struck off to O. was paid by A.; and the object of the arrangement under which the property was struck off to C. was, to protect the property from the creditors of A. by thus putting the title in C.
    •On a bill by A. against C., praying that O. might be decreed to convey the property to A., the Court denied relief.
    Bill filed in March, 1847, stating, that, on the 29th of June, 1838, one Henry Speer recovered a judgment against Jeremiah Baldwin, the complainant, and one Henry Slough, in the Circuit Court of Essex, for the penal sum of f193.37, on a bond given by Slough and the complainant to the said Speer, with $29.44 costs. 'That on the 27 th of June, 1839, a fi.fa. de bonis et terris was issued thereon and levied on a certain' dwelling-house and lot of land in Canal street, Newark, then owned by and in the possession of the complainant, and in and upon which the complainant ■and his family resided, (describing tbe lot);. tbe said lot having been before that time conveyed to the complainant by Charles Baldwin and his wife, by deed dated December 31, 1830. That the Sheriff of Essex, by virtue of the said fi. fa., advertised the said house and lot to he sold at Stewart’s Hotel, Newark, on the 13th of January, 1840.
    That the complainant was then in had health, and reduced in Ms pecuniary circumstances, and unable, without selling said liouse and lot, to pay the said judgment. That the said house had long been occupied by him and his family, and that he and his family and their friends were anxious that an arrangement should be made by which the said property might he purchased in, so that the same would continue to he a home for him and his wife and children.
    That an arrangement was made whereby one Jacob Alyea and one Charles Taylor, who were friends of the complainant and Ms family, agreed to advance $50 each, towards the purchase of said property at said sheriff’s sale; that one Benjamin Beaston, who was also a friend to the complainant and his family, agreed to lend to the complainant the residue of the money necessary to make the said purchase, (it being supposed that the same would be sold for about the amount of said judgment, $118.26 debt, and the said costs and the expenses,) upon the complainant’s note with Edward Campfield, the complainant’s son-in-law, as security; and it was thereupon further arranged and agreed, between the complainant and the said Campfield, that the said Campfield should become the purchaser of said property at the said sale, and receive a conveyance of the same to hold in trust for the complainant until said moneys should be repaid, and that the complainant and his family should occupy and enjoy said property, and upon the repayment of the said moneys the said property should belong to the complainant, and be conveyed to him by the said Edward Campfield.
    That, on the 11th of April, 1840, the sheriff made sale of the said property; and the said Campfield (the defendant,) in pursuance of the said agreement and arrangement, became the purchaser thereof, for $155, being about the sum due on said judgment and the sheriff’s fees; and the sheriff conveyed the said property to the said Campfield, by deed dated April 11th, 1840. That the consideration money for the said purchase and conveyance was paid by the moneys agreed to be advanced and actually advanced by said Alyea and Taylor and loaned by said Beaston as aforesaid; that the said Campfield paid no part thereof of his own money.
    That, at the time of the said sale and conveyance, Robert C. Baldwin, a son of the complainant, and who was under 21, was in the employment of said Taylor, and the said money advanced by the said Taylor was afterwards refunded to him by deducting the same from the wages of the said son of the complainant; and the complainant, being then in the employment of the said Al-yea, refunded to him, by work and labor, the amount so advanced by him. And that, for the purpose of paying and discharging the residue of the amount paid as the consideration of said conveyance, the* complainant’s wife negotiated a sale of seven feet of ground off of the westerly side of said lot to one William Hall, for $56 j and the defendant, at the request of the complainant and his wife, made a deed to the said Hall for said Strip of ground for the said consideration of $56, and the proceeds thereof was applied to the payment of the amount then remaining unpaid of the consideration of the said sheriff’s deed; so that the same was fully paid without any sum whatever being paid by the defendant for or on account thereof.
    That, at the'time of the* said sheriff’s sale and conveyance,, the said property was incumbered by a mortgage, given before the recovery of the said judgment, by the complainant and his wife, to one Caroline Burnet, for $600, and the said sale was-made subject to the said mortgage.
    That the complainant and his family continued to reside in the said house from the time of said sheriff’s conveyance until April 1st, 1844. That, during all that time, the complainant paid the interest which became due on said mortgage, and caused the said house to be insured, and paid the expense of insurance and the taxes assessed upon the premises. That during that time the defendant never set up or pretended to have any beneficial interest in or right to the said house and lot or the rents thereof.
    That, shortly previous to April 1, 1844, the complainant and his family, believing it would be for their advantage to reside in another part of Newark for a few years, rented part of a house in Pennington street, for the rent of $50 a year; and it was thereupon agreed and understood by and between the complainant and the defendant, that said house and lot in Canal street should be ieased out, and the rent thereof, except so much as would be sufficient to pay the interest on the said $600, should be appropriated to pay the rent of the said premises in Pennington street; it being supposed that the rents of said Canal street property would be sufficient or nearly so for both said purposes.
    That, in pursuance of such arrangement, the said Canal street property has since been leased, from year to year, in the name of the defendant, and the rents thereof have been received by him; and the complainant has been informed and believes, that, out of said rents, the defendant has paid the interest on said mortgage, and the taxes on said premises, and a small sum for the repair of the house.
    That the defendant has lately threatened to sell the said house and the complainant is apprehensive he will do so unless restrained &c.
    That the defendant refuses to account to the complainant for the rents of said house, or to convey the premises to the complainant, in pursuance of the said agreement and trust upon which he purchased the same.
    The hill prays, that the defendant may account for the rents and profits ; and may he decreed to convey the premises to the complainant; and may he restrained by injunction from conveying or incumbering the premises; and for such other and further relief &c.
    An injunction was allowed.
    The defendant, in his answer, admits the judgment and execution of Speer, and the levy under it. Denies that the complainant ever did enter into any arrangement whereby he retained either a legal or beneficial interest in the property. Says he is not informed whether said Alyea and Taylor, or either of them, ever agreed to advance, or ever did advance any moneys to the complainant, or whether said Beaston agreed to loan money to the complainant on his note endorsed by this defendant, for any purpose; but denies that he ever indorsed any such note for the purpose d? effecting said loan, or for any other like purpose.
    He denies that any arrangement was ever made by him with, the complainant, or with any other person, that this defendant should receive-a conveyance from the said sheriff of the said property for the purpose, or with the view of holding the same in trust, in any manner, for the complainant, or for any other person; or that any arrangement was made by this defendant to convey the same to the complainant. He admits the purchase by him; hut denies that he became the purchaser in accordance with the arrangement stated in the bill and before denied in his answer.

      He- denies -that he paid no part of the consideration money, or that he raised the money to pay the same by a sale of part of the property to William Hall.
    He says that the complainant, some time in 1838, he thinks in March of that year, called at his- house; that he, not being in at the time, was, on his return home, informed by his wife that the complainant had called; that he immediately called on. the complainant at his house; that the complainant then took him apart and handed him a paper; that he examined said paper, and found it was a deed, dated February 7th, 1888, from the complainant and his wife to this defendant, for the premises, in the bill mentisned; which deed was, on the 8th of February, 1838, duly acknowledged by complainant and wife, as- by a certificate indorsed thereon appears. That when complainant handed him said deed he addressed this defendant in these words, “ Boy, take this, it is yours;” and that nothing whatever was said intimating that this defendant was to hold said property in trust, or for the benefit of the complainant or his family; but that the complainant gave this defendant the said property without any condition or qualification; and that the said deed has ever since remained in the custody of this defendant, except when at the.County Clerk’s office to be recorded, and is now in the same condition it was when delivered to this defendant. That when said deed was so given to him the premises were subject to a mortgage for $600, and were depressed in price, and worth in market but little more than the amount of said mortgage. That he neglected for a long time to h|ve said deed recorded; and, about June 1, 1839, the complainant called on him, and asked him whether he had his deed recorded, and, on being informed it was not recorded, told this defendant he had better have it recorded; and this defendant accordingly had it recorded, on the 20th of June, 1839.
    He admits, that the complainant and his family continued to reside in the premises until April 1, 1844, and continued to pay the interest on said mortgage, and the taxes, and insurance until within six months of said first of April; it being considered, and stated by this defendant, that, although the said in-terest, taxes and insurance were not a sufficient rent, yet he-was willing, in coñsequenco of their relationship, that they" should occupy the premises without actually paying to this defendant any additional rent therefor, and he avers, that he requested the wife of the complainant to remain, with the family,, longer in the said house; but that she refused, stating that they could not pay the interest, taxes and insurance, and that they had already failed so to do, and that they would not longer stay, that the property belonged to this defendant, and that he must have the benefit of it, and that she was glad it was his, that neither her husband, the complainant, nor her son Robert, could keep and take care of the same.
    He says, that he paid the taxes and the interest on said mortgage for the six months preceding April 1,1844, and has done so ever since ; and denies, that he in any manner ever admitted, or that the complainant, until recently, ever insisted that the property did not rightfully belong to this defendant; and denies that he over made any arrangement or agreement by which he was to pay the rent of the house occupied by complainant since April 1, 1844, as in the bill is alleged; but insists that he has at all times, and in all proper modes, claimed the said property. He admits that he has offered the promises for sale, and submits that he has good right to do so.
    He says, that, after the said deed to him was recorded, and on or about April 11, 1840, the complainant called on him and told him that the property was advertised for sale, and that he was desirous this defendant should purchase it at the Sheriff’s sale, and that the purchase money was ready for him as soon as he purchased it; that, as soon as tho premises were bid off by this defendant, the complainant told him that he must now raise the money on his, this defendant’s note, of Benjamin Beaston: and that this defendant then gave his note to said Beaston, which note was endorsed by Jacob Alyea and John Y. Baldwin ; that the said note was for something over $100; that this note was protested, and a new note given therefor for $129.26 ; that this second note was also protested, and a new note given by this defendant therefor. That some person, but who this defendant does not know, paid a part of said note, leaving a balance of $49.50, which was, on or about December 20,1843, paid by this defendant to said Beaston.
    He says, that, on or before the payment so made to Beaston, he was informed by complainant’s wife that William Hall desired to purchase an alley way off of said premises, and on or about February 21, 1844, he conveyed a part of said premises . to said Hall, and received therefor $56.

      Jacob Alyea, sworn for the complainant.
    I remember the .property’s being advertised for sale at Sheriff’s sale, Mr. Baldwin’s property, in Canal street, and I paid $50, and there were other gentlemen that paid. I was to have been one of the pur- ■ chasers, with Mr. Campfield, and we were to buy it in for the • benefit of the family ; that was my understanding about it. I attended the sale ; was there and conversed with Mr. Campfield j at my suggestion he became the purchaser alone ; I advanced - $50 towards the purchase. I became one of the friends of the ■ family, to raise money to buy it for the family of the complainant, upon his solicitation, and he requested me to become one of the purchasers. I told Mr. Campfield, at the time of the sale, that there was no use in my being a party, that it was a family ' matter, and he might become a purchaser alone. I urged it upon him to become a purchaser alone, as he was related to the family, a son-in-law.

      Question. From the purport of the conversation you had with Mr. Campfield, at that time, was it not your understanding that he was to purchase in the property for the .family ?
    It was my belief so ; I guess there can be no mistake about that; that is my honest belief about it; it was the understanding upon which I agreed to become a purchaser, with Mr. Camp-field, of the property, that it should be purchased for the benefit of Mr. Baldwin’s family ; we three were together at the time; Mr. Campfield, Mr. Baldwin and myself, and I believe it was so stated when we three were together; it must have' been so of course. The circumstances of Mr. Baldwin at the time of the sale I supposed were poor.

      Cross-examined. Question. Do you recollect that Mr. Camp-field at any time prior to the sale said anything to you as to your becoming the purchaser either alone or with him 1

      Answer. Either him or Mr. Baldwin, at the public house Mr. Campfield did. Mr. Campfield then rather insisted upon my being the purchaser, but I told him there was no use ; as I said before, at my urgency he agreed to be the purchaser alone. I went to the sale prepared to buy it in, in connection with Mr. Campfield. I do not remember how the payment was made. I remember John Y. Baldwin was to be one of the friends, and he either gave a note and I endorsed it, or we gave a joint note; at any rate I paid it. I was one of the friends, and I paid $50; that is the whole amount I ever paid for that purpose.

      Question. Do you recollect whether or no, on that note’s maturity, you and John Y. Baldwin endorsed a note of Camp-field’s for about $1291

    I have no distinct recollection, it might have been so, I don’t recollect it, it was possible. A paper purporting to be a prommissory note for $129.26, dated January 14,1841, being shewn to the witness, hs says, the endorsement, “ Jacob Alyca,” on that note is in his hand writing. (The note is exhibited on the part of the defendant.) I don’t remember whether I afterwards endorsed other notes in renewal of that; I don’t remember much about the notes ; I don’t remember paying anything but the $50 I have spoken of. Property was not so high in 1839 or 1840, in Newark as it had been before.

      William Hall, sworn for complainant.
    I remember the Sheriff’s sale spoken of. The property joins me, and my calculation was, that if it was going to be sold for the benefit of the family, that is, to raise all the money it could, I.was going to bid on it myself; but as I understood to the contrary I did not attend the sale. Before the sale I understood from the family that Mr. Campfield was going to buy it in. Sometime before Mr. Camp-field was sued on account of this property I went to see him. I said to him, Edward, what is the reason you can’t settle this concern and give up the property as it was understood to be; and I made the observation to him, as a friend, Edward, you know that this property never cost you anything, and you ought to give it up. And I said to him, further, that he knew that the property didn’t bring as much as it was worth, as it was perfectly understood that he was buying it in-for the family, and I believe T said to him that I did not bid on it for that reason myself. I said to him, you had better give the deed back as it was agreed on, and he made an observation something like, that mother, or Mrs. Baldwin, as he called her, had made so much to do about it he didn’t think he would give it up now. He admitted the property hadn’t cost him anything. I purchased a little strip of the lot,' seven feet of it, after the Sheriff’s sale; the complainant’s wife applied to me to purchase it. I agreed with her for -it; $8 a foot was the price agreed upon, and I was to pay all the expenses, drawing the deed and moving the fence. I had nothing to do with Mr. Campfield' in making the bargain, not a word. He came to me with the deed, and I paid him the money.

      Question. What was stated to be the object of selling the seven feet to youq. (Objected to.) To'paythe balance on the judgment lying on the property for which it was recently sold; it was stated by Mrs. Baldwin to be the balance of the judgment •upon which the property was bought by Mr. Campfield; it was to pay the balance of the note. Mr. Campfield never told me what was the object of the sale to me. Mr. Baldwin and family continued to live-on this property until five years ago next April. They used and occupied it as their own, from the time of the sale until they moved out, as they formerly did. I am not .positive, but I think Mrs. Baldwin paid the taxes and the interest on the mortgage. There were repairs put upon the property while they lived there after the sale; to the best of my knowledge and belief, Mr. and Mrs. Baldwin did these repairs. I never knew of Mr. Campfield making any claim upon the ■ property while they lived there, only so far as his giving the deed to me. ■ I lived next door to them from the time of the purchase by Campfield until they moved away. I should have been willing to give $850 for it at the time of the sale. I might give $50 -more for it now. I believe the house rents for $100 a year. There is a barn on the property. I have rented the barn from Mr. Campfield for the last four years, at $8 a year. The circumstances of Mr. Baldwin, at the time of the sale, were poor. His health was then poor; not able to earn his bread. (Objected to.)

      Cross-examined. When I told Mr. Campfield that the property never cost him anything, he said it didn’t. I have been a carpenter, and have made repairs to the house, but not while Mr. Baldwin lived there. Mr. Campfield has paid me, at least it was deducted out of the rent of the barn. Mr. Baldwin was in debt at the time of the sale by the Sheriff; had other debts * besides the judgment. Property in Newark was considerably depressed in 1840.

      William F. Fines, sworn for complainant.
    He states a conversation between him and defendant, in which the defendant spoke of selling the -said house and lot in Canal street, and then proceeds thus : Mr. Campfield said that'he had an idea of selling, and buying a lot and building a house; the expression, I believe, was, of selling that place of father Baldwin’s and building them , a house; he said he thought it would be better to sell that place and build a house for "them; then there would be no trouble after-wards. When he spoke of building a house for them, he meant, I suppose, Mr. Baldwin. At another time he said they had been up to his shop ; then he mentioned the name mother Baldwin; he said she came up there and wanted the deed; that he told her that if she would give him $300 he would give her the deed, and then he said, in a laughing way, where’s the $300 to come from 1 He said they had been up there trying to come their games over him, and that Uncle Charley had been there to get something out of him. In a subsequent conversation with me he said they had called him everything but a clever fellow. I then told him, Edward, you hadn’t ought to do wrong because they have done wrong; we all know that Mr. Baldwin hasn’t done right, but Mrs. Baldwin has worked hard to keep that little property; and then he said, let them use me well, and not call me everything but a clever fellow. When I told him he ought not to do wrong because they had, I referred to his holding the deed. The way I understood it, from what he told me, was, that he was holding it in trust; I supposed for Mr. Baldwin; he gave me all the information, all I ever knew about it. I think he said it was put up at auction, and he was requested to be there to buy it in, Mr. Baldwin requested him to be there to buy it in, there would be some one to pay the money for it, that Uncle Charley would be there to pay the money for it, after he had bid on it and it was knocked off to him, and there was no one to pay the money for it; then he spoke about having to scratch round to get it settled, to know something about it. I think he said he gave a note for it, and that Mr. Olds endorsed it; and that it was protested ; and he either said that another note was about to become due and would be protested, or that it had become due and had been protested; I don’t know which. I think this conversation was after the suit was commenced. I think he said the notes were not paid and wouldn’t be paid by him. I don’t remember that he ever said anything had been paid by him on account of the property. He didn’t say, or give any reason why that $300 was required to be paid by him.
    Cross-examined„ (Unimportant.)

      Re-examined. In one of the conversations Mr. Campfield spoke of what he could get for the property; whether it was fl,000 or $1,200 I don’t remember; this was at the conversation when he talked about selling that place and buying and building another ; and I told him at the time I thought it ought to bring $1,600 or $1,100 ; and that is my opinion of its value.

      Benjamin Beaston, sworn for complainant.
    I have known Mr. Baldwin about 18 years. I know Mr. Campfield now, but did not know him at the time of the transaction. I know the house and lot formerly occupied by Mr. Baldwin in Canal street. I recollect about its being advertised by the Sheriff for sale; don’t recollect the year. I was apprised by Mr. Jacob Alyea about it, and saw it in the paper also. Mr. Alyea jogged my mind about it several times. I had no agency or part in buying in that property at the Sheriff’s sale; was not there. After the property was bought in I advanced some money, that is, I did this, Mr. Campfield’s note was presented to me with Mr. AI-yea’s indorsement, and John Y. Baldwin’s indorsement, for some sum over $100, between $100 and $130 ; my impression is that it was $126. This money was to pay a certain amount for which the property was bid in by Mr. Campfield. I think the Sheriff took the money from me. This note wras not paid when it became due, and went to Mr. Alyea for the reason. It is probable the note was renewed once without any payment, don’t know as to this; it was renewed at any rate, and Mr. Alyea paid $50 of it, ' and the note was renewed for the balance. After the note got down smaller I applied to Mr. Campfield. I was not treated by Mr. Campfield as though it was a business note. What he said left the impression on my mind that I was not to got it from him without law; there was something said that it was a family concern. There were three payments before the note was taken up; the first was Mr. Alyea’s; Mr. Charles Taylor became accountable for $50 of it, which was paid ; and the third came through Mr. Campfield’s notes, indorsed by some one ; it was paid in the bank; that was over $40; I think $46. Mr. Baldwin’s son was at work for Mr. Taylor, at that time, and he said the boy was to leave so much of his wages out, and he would give $50, and did pay me $50. Mr. Baldwin applied to Mr. Taylor to make this arrangement, and took me there. After trying to get Mr. John Y. Baldwin, the other indorser, to pay the balance of the note, and not succeeding, I went to Mr. Campfield to get the balance, which I had not intended to do, because, if I had succeeded in getting anything, $5 or $10 from J. Y. Baldwin, I intended to have made a present of the balance, as I thought, to Jeremiah Baldwin’s family, which I was willing to do to secure a home for his family.

      Cross-examined. Mr. Campfield came to my store with the money to pay the last note ; whether I went to the bank or he went, I can’t say, for the note; it is my impression that the note was lying at the bank.

      Robert C. Baldwin, a son of complainant,
    called for complainant, was objected to as interested, being an heir at law of Jeremiah Baldwin, the complainant, who had died since the commencement of the suit. Being examined on his voir dire, he -says he has no interest in the event of the suit; that he has ■conveyed his-interest in-the property to his mother, for board due from him to his mother, -he working out and .receiving wages while he boarded with her.
    Being sworn in chief, subject to the objection, he says: At the • request of my mother Í spoke to Mr. Campfield, and told him that -she wished him to give her a deed for the property, (the Canal street property spoken of.) He said he didn’t like to do that for fear she could not hold the deed, and he thought it would be better to sell the property, and buy a lot somewhere in the outskirts of the town, where property was not so valuable, and put up a small house there, and give my mother a deed for that property, as then there would be no disturbance, no law suit against the new property, and she could hold it much safer ; on account of the judgment being against the property in Canal street, he didn’t feel safe about it. He said that this property would sell for enough to pay the mortgage on it and leave enough to pay for the new house and lot, or nearly -so ; so, at any rate, as to leave only about $200 on it. He never said anything to me about who paid the purchase money for the. lot in Canal street. I do not know how Mr. Alyea was paid for the advance he made. My father was working for him at the time the property was sold. After the Sheriff’s sale, and until they moved in Pennington street, my-father and mother continued to reside upon the property; and while they lived there the interest on the mortgage was paid by the family; my mother paid it. Mr. Campfield also told me that he did not want to hold the .property, that it was a trouble to him, and he wanted to. get clear of it, but he was afraid my mother couldn’t hold it. In none of the conversations I have had with Mr. Campfield about the property has he ever said that he had any interest in it, or that he had anything coming to him on it.

      Cross-examined. My mother paid the interest on the mortgage, all that was paid, up to the time we moved to Pennington Street; I think the last six months’ interest was not paid before we moved; I never heard anything to the contrary but what she paid the interest; I took most of the money myself. Mr. Campfield never furnished any money to pay the interest on the mortgage, without it was the last six months wo were there; as to that I couldn’t say; I am under the impression that it was not paid when we left there. I do not remember to whom Hall paid the purchase money for the strip, whether to my mother or to Mr. Campfield. That purchase money went to pay the balance that was over on the Beaston note ; I heard Mr. Campfield say that that was what he wanted the money for; Mr. Camp-field got the money.

      Re-examined. I have heard Mr. ■ Campfield speak about the Beaston note; about its not being paid; he said that it wasn’t paid, that it ought to be paid, .that Beaston was at him about it a number of times, and he couldn’t pay it. I do not know that he said who ought to pay it; but from the way it was talked about it was perfectly understood who ought to pay it.

      John Humphreys, sworn for complainant.
    I married a daughter of Jeremiah Baldwin. Mr. Campfield told me the premises were sold at Sheriff’s sale, and that he was the purchaser at the sale. The sale was before my connection with the family. I have no interest in this cause; my wife and I have made a conveyance of our interest in the property. Mr. Camp-field told me that father Baldwin had got in difficulty, and the place in Canal street had been sold, at Sheriff’s sale, and he had a deed for it; previous to which, however, he told me something about a deed which had been given him for it, but had never been recorded. He said that “ ma” wanted a deed for it, but he thought she couldn’t hold it. He was willing, he stated, to give it up to any one they might designate; I forget exactly the words ; that he wanted to get clear of it, he had trouble enough with it» He said they had'let anote of his get protested. He asked me, I believe, at the same time, what he had best to do about it. I remarked that he had better keep it himself, I thought, as far as I knew about it. He said that he didn’t want to have anything* more to do with the place; I think those were his words. . He stated to me at another time that he should sell the property in Canal street, he believed, that was the best, he thought, and pay off the mortgage on it, and invest the balance in a house and lot that would cost less. He stated to me, either at that time or another, that the place had not cost him anything, and gave me to understand that he held it in trust for the old folks. I asked him, at one of the interviews we had, about the note. He stated that he had given a note for between forty and fifty "dollars, if 1 recollect right, that that note had been protested, wouldn’t care a damn about it if it hadn’t been for that; that he had to borrow that money. I asked him if that money had never been paid back. He stated to me that.there had been a strip of land sold off of the lot, and that had finally paid it. When I told him he had better keep the deed himself I had just been married, and didn’t know there was any trouble about the property, and I merely meant to say to him that he had better keep the title himself. He said that he had rather been forced into it, that he didn’t want to do it in the first place'. I think he proposed to give the deed for the new property he proposed to buy to mother Baldwin ; he was willing to do that provided she could hold it. He distinctly said that he hadn’t paid anything for the property except the |50 he had borrowed, and that that had been repaid to him. He stated that he purchased the property at the request of Mr. Baldwin.

      Cross-examined. I have' talked over this subject with Mrs. Baldwin very often. I gave the interest I have in the property to mother Baldwin; I got no consideration for it; it was a gift.

      Re-examined. I am under no promise or obligation, directly or indirectly, to pay anything on account of the expenses of this suit. I believe there is an account of about |2o, which a person owes me, that I have told mother Baldwin she might have to go on account of the expenses of this suit. I understood that Mr. Campiield held the property in trust from the fact that ho said it cost him nothing, and that ho wished to get clear of it afterwards. He told mo he was willing to convey it to some other person to hold for th? old folks; said ho was willing to convey it to Robert, if “ ma” thought he could hold it.

      Charles Taylor,

    sworn for complainant. (He proves nothing additional of importance.)

      Mrs. Eliza Humphreys,

    sworn for complainant. (Nothing additional of importance.

      Mary Hall,

    sworn for defendant. Mrs. Baldwin has spoken to me frequently on the subject of the property in Canal street in possession of Edward Campiield. She said her husband was in some trouble in relation to some debts, and if Mr. Hall would purchase seven feet of land adjoining us, I ¡think it was $50, that with something else would meet the debt and leave $6, and that she intended to give to Mr. Campfiold, for ho was a poor man, for his trouble. I never heard her say whether Mr. Camp-field was the owner or not o'f that property; she said it was put in her son-in-law’s hands, and she expected to come back again to the property.

      Cross-examined. Mr. Hall purchased the seven feet off the lot: he made the bargain with Mrs. Baldwin. Before Mrs. Baldwin moved from that house she told me the reasons of her moving; that Mr. Campiield would pay the rent whore she was going to; the money that was coming from the rent of Mr. Campiield would pay the rent of the other; she said the rent would pay the interest on a $600 mortgage which was on the property also. The rent which she said would pay the rent of the other house was to come from the. house in Canal street.

      Question. Did Mrs. Baldwin ever say that the house was ever held by Campfield in trust?
    Yes, she always said so. I understood the property was bought with that debt on it, and she was to- raise the money to pay it.

      Re-examined. Question. Did Mrs’. Baldwin- say that Camp-field held that property in trust, or did she say that he held it so that their creditors should not take it away from them ?
    I think she expected some other debt was coming against them.

      Question. Did you understand that this property was put in Campfield’s hands only to protect it from creditors ?
    1 always understood it so.
    Again cross-examined. I always understood that th.e property was bought in at the sheriff’s sale, for the benefit of the family, at the request of some member of the family. (Objected to by defendant’s counsel.) Mrs. Baldwin told me her son had worked to raise the money, besides the $50, towards paying the sheriff; and she has told me about raising money by borrowing from Mr. Alyea and Mr. Beaston for the purpose of paying towards the place.

      Garret Sandford,

    sworn for the defendant. I have heard Jeremiah Baldwin say that Edward Campfield bought the property (spoken of).

      Cross-examined. Question. Did Mr. Baldwin ever tell you that Campfield had refused to deed the property to him, or refused to do as he agreed, or had deceived him? (Objected to by defendant’s counsel).
    • He told me they were about commencing a suit in Chancery; and in speaking of .Campfield, he was afraid the boy was going to deceive him, or had or would deceive him, or something to that effect.

      Stephen R. Grover,

    sworn for the defendant. Mr. J. Baldwin was frequently in my office, and Mr. Campfield with him. I was the attorney in the judgment upon which the property was sold. From conversations I had with Mr. Baldwin and Mr. Campfield I got the impression that Mr. Baldwin had, previously to the sheriff’s sale and to the judgment, conveyed the property to Mr. Campfield, but for what purpose, or what the consideration was, I don’t know. After the salo I understood from the parties that Mr. Campfield bought it. Mr. Baldwin and Mr. Campfield were at my office and talked about the property after the sale. There was a payment made by Mr. Campfield or some one for him. On the 15th of April, 1840, Mr. Campfield, or some one for him, paid me $45, and I, as attorney for the plaintiff in the judgment, agreed to wait for the balance of the purchase money on Jacob Alyea’s being security for nine months. I think that both Mr. Campbell and Mr. Baldwin were there at the time.

      Cross-examined. I have no distinct recollection as to anything being said about Campfield’s holding the property for the benefit of the family, and to give the family an opportunity of raising the money.

      Question. Whether, from what was said or took place before you, you inferred or got the impression that Mr. Campfield bought the property for the benefit of Mr. Baldwin or his family. (Objected to by Mr. Frelinghuysen).
    From the relation of the parties, from the manner in which the business was transacted, I got the impression that it was for the benefit of Mr. Baldwin and his family, although I can’t recollect any particular conversation from which I got that impression.

      A. Whitehead

    for the complainant. He cited 2 Story’s Eg. Jur. sec. 1201; 14 Law Lib. 85; 2 John. Ch. 408; 7 Crunch, 176. ' '

      F. T. Frelinghuysen

    for the defendant. He cited 1 Story’s

      Eq. Jur. sec. 354, 371, 425; 2 Myln. & Kean, 496; 2 Halst. Ch. 496.
   The Chancellor.

There can be no doubt, that the first deed from the complainant to the defendant, and the arrangement, at the sheriff’s sale, by which the property was struck off and conveyed to the defendant and the purchase money paid by the complainant, were both made for the fraudulent purpose of putting, or attempting to put, the property beyond the reach of the creditors of the complainant. No trust can result in favor of the complainant from such a transaction.

Bill dismissed.


text:
    France v. France.
    After the dissolution, on answer, of an injunction restraining proceedings in an ejectment, a replication was filed by the complainant, and testimony taken on both sides, and the cause noticed for hearing. The Court refused to hear a motion for the renewal of the injunction on the testimony.
    On the filing of the bill an injunction liad been allowed, restraining the defendant from further prosecuting an ejectment. On the answer,and argument, the injunction was dissolved. The complainant filed a replication; and testimony was taken on both sides; and the cause noticed for hearing.

      Mr. Shipman,
    for the complainant, made an application, on notice, for a renewal of the injunction, on the facts as they appeared in evidence, proposing to read the testimony taken in the cause in support of the application; and stating, that, unless the injunction were renewed, the ejectment would be tried, and the complainant be turned out of possession, before the cause in this Court could bo heard.

      S. G. Potts

    opposed the application, and submitted that the Court would not hear the testimony read for the purpose proposed.
   The Court refused to hear the motion.