text:
    Benjamin Fish, Charles G. Green and George S. Green v. William Potts, trustee, and others.
    The Trenton Del. Falls Co., by lease dated December 16,1S35, demised to Pish and others, their heirs and assigns forever, the right of drawing a certain quantity of water from the raceway of the said Company, for the annual rent of $500, in quarterly payments. The said lessors, by "writing under seal, endorsed on the said lease, and dated December 10, 1835, granted and assigned the said lease, and all the rent due and to grow due thereon, to W. X\, in trust, first, for the payment of the interest due and to become due to certain creditors of the said lessors upon the several principal sums due to the said creditors; next to pay to the said lessors, from time to time, as the rent should be received, the balance which should remain in Ms hands after paying the interest aforesaid; and, thirdly, upon the payment of the said debts by the said lessors, to re-assign the said lease to them. On the 9th of June, 1843, the said Company, the lessors, became insolvent, and receivers were appointed, with authority to sell the estate, franchises and works of the said Company. On the 15th of February 1844, an act of the Legislature was passed, by which the receivers were authorized to sell the estate &e., of the said Company, at public sale, free of all incumbrances; the purchasers at the said sale to hold as a joint stock company, in the same manner as iho original stockholders held; that, after such purchase, the said company should be known as “ The Trenton "Wafer Power Company,” and by that name exercise all its corporate powers; but that nothing in the said act should be construed to affect, the rights of the creditors of said Trenton Del. Falls Company to receive tlieir distributive share of the proceeds of the said sale according to law, or to invalidate any existing leases made by t'he said Company or assignment thereof. On the 20th of February, 1844, the receivers sold, free from all incumbrances; and the sale was confirmed by the Court, and a deed ordered; which was accordingly made to the purchaser; who, with his associates, organized as a corporation under the name of “The Trenton "Water Power Company,”

      Held, That “The Water Power Company” were entitled to the rents accruing on.the said lease after the said purchase at the reeiever’s sale; that the words “ assignment thereof,” in the clause, in the act of February 15fh, 1844, providing that nothing therein contained should be construed to invalidate any existing leases or asp si,gnmeni {hereof, mean, assignmentby the lessee or lessees, and not assignment by the lessor.
    On tlie 24th of August, 184C, Benjamin Fish, Charles G. Groen and George S. Green exhibited their bill,, stating that “ The Trenton Delaware Falls Company” was, by act of the Legislature, passed February 16,1831, incorporated, with power to cut a raceway and create a water power, in the manner specified in the said act, to be used for mills and manufacturing purposes.

      That, by a certain indenture of lease, dated December 16, 1835, made by and between the said Company, of the one part, and Benj. Fish and Chas. G. Green, two of the complainants, and° Wm. Grant and Wm. G. Cook, of the other part, the said Company demised andleased to the said Benj. Fish, Chas. G. Green, Wm. Grant and Wm. G. Cook, and their heirs and assigns, the right and privilege of cutting a sufficient opening or passage through the bank of the Company’s main raceway, whereby water might be drawn therefrom, together with the right and privilege of drawing therefrom a certain quantity of water, in the manner and for the purposes in the said lease specified ; To have and to hold to the said lessees, their heirs and assigns forever; yielding and paying therefor to the said Company the yearly rent of $500, in equal quarterly payments, on the first days of January, April, July and October; the first of which payments was to be made on the 1st of January then next.
    That the said Company, by an assignment under seal, endorsed on the said lease, dated December 19, 1835, after reciting that the said Company were indebted to S. R. Hamilton, Thomas J. Stryker and William Potts, in the sum of $500 each; to J. S. Hill in $500 $ to John Whitaker in $500; to John Mc-Kelway in $2,000; to Timothy Abbott in $500; to Nathaniel Potts in $1,000; and to Joseph Trotter in $300 ; amounting in all to $6,300, borrowed of them by the said Company, to aid in completing their said water power ; and were desirous to secure to the said several persons the interest due and to grow due to them, respectively, upon the said several sums of money, until the principal sums should be paid; did, in consideration of the matters above set forth, and of $1 to them paid by William Potts, grant, assign and set over unto the said William Potts, the said indenture of lease and all the rent due and to grow due thereon, as it should become due and payable; To Have and to Hold the same, and to collect and receive the said rents then due and owing, or which might thereafter become due and payable, in trust, in the first place, for the payment of the interest due and to become due to the said Hamilton and others above named, upon the several sums of money so due to them; in the second place, to pay over to the said Company and to the Treasurer thereof the balance of moneys which should remain in his hands, from time to time, as the same should be received from the lessees named in the said lease, their heirs, executors, administrators or assigns, after satisfying the interest as aforesaid; and in the third place, upon full payment and satisfaction of the said several debts by the said company or their successors, then to execute a re-assignment of the said lease, and all the rights, powers and interests granted by the said assignment, to the said Company and their successors.
    That the said lessees paid, from time to time, to the said Potts, the trustee named in the said deed of assignment, the said rent, as it became due, up to April 1st, 1838; at or about which time all the right, title and interest of the said William Grant and William G. Cook in the said lease were purchased by and transferred to the complainants Benjamin Fish and Charles G. Green, who afterwards sold and transferred an interest therein to the complainants George S. Green.
    That the complainants ever since have been and now are in the quiet possession and enjoyment of the rights and privileges demised by the said lease; and have, from time to time, since the said April 1, 1838, paid to the said Potts, trustee as aforesaid, the said rents, up to January 1, 1845.
    That John McKclway, one of the persons named in the said assignment, has received full payment of his said debt therein mentioned.
    That the said debt from the said Company to the said Nathaniel Potts has been assigned to the said William Potts.
    That the said debt from the said Company to the said Joseph Trotter was assigned to the said Timothy Abbott.
    That afterwards, on or about the day of 1845, the said Timothy Abbott died, leaving a will, of which he appointed Charles H. Abbott and George Abbott, executors.
    That, the said Company having become indebted uñto one Isaac Ivins, for money borrowed of him upon the condition that a further interest in the said lease should be assigned to the said William Potts, to secure the payment of the interest upon said debt to Isaac Ivins, the said Company was, on or about September 14, 1838, at a meeting of the Board of Managers of said Company, authorized to assign to the said William Potts a further interest in the- said lease for the benefit of the said Isaac Ivins, to secure to him the interest on $600, he having advanced that sum for the use of the said Company.
    That the said Ivins has, as these complainants are informed and believe, received from the said trustee, from time to time, out of the rents, the interest on the said $600.
    That, on or about Juno 9,1843, the said Company became insolvent; and James Ewing, Philemon Dickinson and Samuel J. Stryker were appointed by this Court receivers of &c., of the said Company, with full power and authority to sell and convey all the real and personal estate, franchises and works of the said Company.
    That, on or about February 20, 1844, the real estate, -works and franchises of the said Company were sold by the receivers, at public sale; and that afterwards, on or about March 8,1844, the said receivers delivered to the purchaser or purchasers thereof a deed for the said real estate, works and franchises.
    That by virtue of an act of the Legislature, entitled “ An act to relieve the creditors of the Trenton Delaware Falls Company,” passed February 15,1844, the purchasers of the real estate, franchises and works of the said Company were authorized to hold the said real estate, works and franchises in the same manner that the original stockholders held the same. And that by the said act it was also, among other things, enacted and provided, that after said purchase the Company should be known as cc The Trenton Water Power Company,” and by that name should sue and be sued, and exercise all its corporate powers.
    That, under the authority of the said act, cc The Trenton Water Power Company” was organized and went into operation; and that “ The Trenton Water Power Company” now hold, possess, occupy and enjoy the real estate, works and franchises of the said “ The Trenton Delaware Falls Company;” and by reason thereof claim to be the landlords of the complainants, in the place of the last mentioned Company, and to he entitled to collect and receive the rents due and to become due upon the said lease.
    That the complainants have been informed and believe, that Thomas J. Stryker, one of the persons mentioned in the said assignment, and for whose benefit the samo was made, has assigned and transferred all his interest in and under said lease and assignment 'thereof unto the said “ The Trenton Water Power Company,” or to James M. Redmond, the President of the said Company, for their uso.
    That the said William Potts, to whom the said lease was assigned in trust as aforesaid, claims to be entitled, in behalf of himself and of the said S. R. Hamilton, Jasper S. Hill, John Whitaker, Isaac Ivins, and C. H. Abbott and George Abbott, executors &c. of Timothy Abbott, deceased, to collect and receive the whole amount of the rents due and to become due upon tbe said lease, until they receive full payment and satisfaction of their said several debts; and to apply the said rents, when received, to the payment of. the principal as well as the interest of their said debts, until the same shall he fully paid arid satisfied.
    That, on the other hand, the said “The Trenton Water Power Company” claim to be entitled to collect and receive the whole or a large part of the rents due and to become duo upon tbe said lease; and insist that tbe said Company, having purchased the real estate, works and franchises of the said “ The Trenton Delaware Falls Company,” have become and now are the landlords of these complainants, and that their right to receive the said rents due and to become due upon the said lease is in no wise affected or impaired by the assignment of the said lease to the said William Potts, and that the said assignment is not valid against or binding upon tbe said “ The Trenton Water Power Companybut that that Company are entitled to hold the said lease free and clear of the said assignment, and to receive the rents due and to become due thereon, as though tbe said assignment bad never been made, and insist that if tbe said assignment is at all valid and binding on them, then, that said William Potts, trustee as'aforesaid, is entitled, under the said assignment,, to receive only so much, and no more, of the rents as may he sufficient and necessary to pay the interest upon the several debts mentioned in the said assignment, and which have not been paid and satisfied or assigned to the said “ The Trenton Water Power Company 5” and that that Company are entitled to receive the residue of said rents, after deducting therefrom so> much as may be necessary to pay the interest aforesaid; and that the said rents ought to be apportioned between the said' William Potts, trustee as aforesaid, and the said u The Trenton Water Power Company;” and that so much of the said-rents as belongs to that Company should be paid by these eomplainants directly to the Treasurer of that Company, and not to= the said Potts, trustee as aforesaid.
    And the complainants state, that James M. Redmond, the President of that Company, has at sundry times informed the complainants, or some of them, of the claim of the said u The Trenton Water Power Company” to the said rents, and forbid the complainants to pay the sanie to the said William Potts, trustee as aforesaid.
    That the said u The Trenton Delaware Falls Company,” by the said lease, did covenant and agree, that they would at all times maintain and repair their raceway and the banks thereof; and if at any time a breach should happen, they would repair the same within as short a time as the nature of the case would admit ; and if not repaired within thirty days, then, that after the ’ expiration of the said thirty days, the rent should abate until the same should bo repaired ; and that they would be liable to no other damages for any stoppage of the water to be occasioned by the building, clearing out or repairing the said raceway, except the deduction of the rent aftey the end of the said thirty days.
    ' That, during the summer of 1845, “ The Trenton Water Power Company” were engaged about three months in widening and repairing the raceway &c., and that the water was stopped during all that time; and that the complainants are entitled to an abatement of the rent during the time Of such stoppage, after the expiration of the first thirty days thereof, amounting to $83.38.
    That the complainants have paid the rent up to January, 1845 j that the rent from that time to July 1, 1846, being six quarters, lias not been paid; and that six quarters5 rent, after deducting therefrom the said $83.33, is now duo from the complainants upon the said lease.
    That they are, and at all times have been ready and willing to pay the same to whoever shall appear to he entitled thereto; and that they had hoped that the different parties claiming said rent would have settled the dispute between themselves; but that said William Potts, trustee as aforesaid, threatens and intends to proceed at law against the complainants for the recovery of the said rent; and has, as the complainants are informed and believe, placed the said lease in the hands of an attorney for the purpose of instituting proceedings against the complainants. And that the said “ The Trenton Water Power Company55 also claim the said rent, and refuse to consent that the complainants shall pay the same to the said Potts, trustee as aforesaid; and insist that tho complainants shall pay the said rent, or a large part thereof, to the Treasurer of the said Company.
    That by reason of the said adverse claims the complainants are unable to ascertain with certainty to which of the said parties tho said rents belong ; and are advised that tho said parties ought to interplead touching their rights to the said rents, in order that the complainants may know to whom the same ought to bo paid; and that the defendants should be injoined from commencing any action or actions at law against the complainants in respect to tho matters aforesaid.
    The bill prays that the defendants may answer, and may be decreed to interplead together; and that it may be ascertained, in such manner as the Court shall direct, to which of tho said parties the rent due and to become due upon the said lease belongs and ought to be paid; and that the Complainants may be at liberty to pay the rent now due and to grow due into this Court, which they hereby offer to do, for the benefit of such of said parties as shall appear to be entitled thereto; and that the defendants may be injoined from suing at law for the rents; and for such further and other relief, &c.
    William Potts, trustee as aforesaid, and Hamilton, William Potts, J. S. Hill, J. Whitaker, and C. H. Abbott and George Abbott, executors of T. Abbott, deceased, put in their joint and several answer.
    They admit the incorporation of “ The Trenton Delaware Falls Company;” and the lease mentioned in the bill; and the assignment thereof to William Potts in trust for the persons, uses and purposes in the bill and in the said assignment set forth; and the payment of rent as in the bill mentioned, and the assignment ' by Wm. Grant and Wm. G. Cook of all their interest under the Said lease to the said B. Fish and C. G. Greene; and that they afterwards transferred an interest in the lease to G. S. Green. That the complainants have had quiet possession under the said lease; and have paid the rent to January, 1845.
    They admit that McKelway’s interest in the lease has been extinguished; and that the debt due from the said Company to Nathaniel Potts has been transferred to William Potts; and that Trotter’s interest in the lease and assignment thereof was , transferred to T. Abbott, since deceased, and is now held by C. H. Abbott and George Abbott, the executors of his will.
    They admit that the said Company became insolvent; and that receivers were appointed, with authority &c-., as stated in the bill; and *that the said real estate, works and franchises were-sold, as stated in the bill.
    They admit the passage of the “ act to relieve the creditors of • the Trenton Delaware Falls Company;” and they say they have heard 'and believe, and therefore admit, that by virtue of the said act, “The Trenton Water Power Company” was organized; and that they now hold, possess, occupy and enjoy the real estate, works and franchises of the said “ The Trenton Delaware Falls Company.”
    They say they have heard and believe, and therefore admit, that the said T. J. Stryker has transferred all his interest in the said lease and assignment thereof to ££ The Trenton Water Power Company.”
    They say that the assignment of the lease to the said William Potts was in consideration of the loaning by these defendants, respectively, to “ The Trenton Delaware Falls Company,” of the several sums mentioned in the said assignment; which sums were expended by the Managers of the said Company in repairing and improving the works of the said Company, as they are informed and believe; they receiving no other security for the payment of the said principal sums and the interest thereon than the said lease assigned as aforesaid.
    They charge that the assignment conveyed to their said trustee the entire rent reserved by the said lease, whether due or to become due, and conferred upon him full power to collect the same. And they deny thati£ The Trenton Water Power Company” are the landlords of the complainants, or have any right or authority to demand the rent from the complainants, or any part thereof.
    They insist that the lease was assigned to their said trustee to secure as well the principal of their said loans as the interest thereon; and that the absolute power of their said trustee to collect the whole of the rent cannot be defeated in any other way than by the full payment and satisfaction to them, respectively, of their said several loans.
    They insist that the complainants are hound to pay to their said trustee the entire rent reserved by the said lease, as the same becomes due; and that it is his duty, as fast as he collects the same, to pay thereout the interest which shall be due on the said several sums so loaned as aforesaid, and then to apply the balance remaining in his hands, if any, to the payment of the said principal sums.
    They say that by the terms of the said assignment the said trustee was directed, after paying the interest on the principal sums, to pay the balance of money which shall remain in his hands, from time to time, to ££ The Trenton Delaware Falls Co.” and to the Treasurer thereof. And these defendants say that out of this balance <£ The Trenton Delaware Falls Co.” made, as they are informed and believe, some oral provisions for the payment of some debt due from them, or the interest accruing upon some debt due from them to the said Isaac Ivins; but these defendants insist, that there was no legal assignment made to the said Ivins ; and that these defendants were not consulted in the making of said arrangement or provision, and had no knowledge thereof at the time it was made ; and that' they are not bound thereby; but that, the said “ The Trenton Delaware Falls Co.” being no longer competent by themselves or their Treasurer to receive the said balance, the same may rightfully be retained by their said trustee, to be applied in the payment of the principal sums mentioned in the said assignment.
    They say that their said trustee has faithfully performed his trust, and has collected the rents for their use, up to January 1, 1846.
    They admit the provision in the lease for the abatement of rent on the stoppage of the water ; but whether it was stopped from the complainants’ mill for 80 days in any one year since the failure on the part of the complainants to pay their rent, they do not know and cannot answer, but leave the complainants to prove &c.
    “ The Trenton Water Power Co.” put in their answer.
    They admit the lease ; and that<c The Trenton Delaware Falls Co.” assigned the said lease to the said Wm. Potts, in trust, in the first place, to secure the payment of the interest due and to grow due to certain creditors of the said Company; in the second place, to pay over to the said Falls Co. the balance of money which should remain in his hands from time to time, as the same should be received from the said lessees, after satisfying the interest aforesaid; and in the third place, upon full satisfaction of the said several debts, then, forthwith to execute a re-assignment of the said lease to the said Company ; but as to date or more particular terms of the said assignment, and the amount of the debts the interest upon which it was intended to secure, and what part thereof is still unpaid, they cannot state, except that they have understood and believe, that McKelway has been paid; and that T. J. Stryker has assigned and transferred all his interest in the said assignment to these defendants.
    They say they have no knowledge, except from hearsay and the statements of the hill, that “The Trenton Delaware Falls Co.” became indebted to Isaac Ivins, and that the President of said Company was authorized to assign to said Wm. Potts a further interest in the said lease for the benefit of said Ivins, to secure to him the interest on $600; but they believe that said Ivins does claim to have an interest in said lease and the rents due and to become due, to secure the interest upon some debt alleged to be due him from the said Company.
    They admit the insolvency of said Falls Company, and the appointment of Receivers with full power and authority to sell, convey and dispose of the real and personal estate, franchises and works of the said Company.
    They say that at the time of the appointment of the said Receivers the Falls Co. were indebted in an amount greatly exceeding the value of their real and personal estate, franchises and works, to wit, in more than $100,000. That one Robert McCall held a mortgage, duly recorded, upon a large part of the real estate of the said Falls Co., to secure $3,300, part of the purchase money of said real estate. That the Trenton Banking Co. held a mortgage, duly recorded, upon all the lands and raceway of said Falls Co., dated April 2, 1833, to secure $4,000 ; and another mortgage on the same, of the same date, duly recorded, to secure the further sum of $6,700. That the said Banking Co. also had a judgment against said Falls Co., recovered in the 'Supreme Court, on the 22d May, 1834, for $6,237.50, which was a lien on all the real and personal estate of the said Falls Co. That T. Cadwalader and others had a mortgage, duly recorded, upon all the real estate of said Company north of the Assunpink Creek, dated May 21, 1834, to secure $15,491.47; upon all which mortgages and judgments a very largo amount of interest 'had accrued, and which were existing liens, at the time of the alleged assignment of the said lease to the said Wm. Potts, trustee as aforesaid, on the real estate, raceway and property of the said Falls Co.

      They say that, subsequent to the date of the alleged assignment of the said lease, to wit, on the 2d June, 1836, the said' Falls Co. éxecuted to B. Fish and others a mortgage, to secure $9,227-97, which was duly recorded, and embraced a large portion of the real estate of said Falls Co., inclusive of their raceway. That on the 4th June, 1836, the said Falls Co. executed a mortgage to Armitage Green and others, to secure $7,395.45,. which was duly recorded, and embraced the same property covered by the said mortgage given to B. Fish and others. That on the 3d June, 1837, the said Falls Co. executed a mortgage to Samuel J. Stryker, to secure $10,000, on all the real estate of the said Company, which was duly recorded. And that on the 21st February, 1843, the said S. J. Stryker entered up judgment on the bond accompanying said mortgage, in the Common Pleas of Mercer, for $7,935.30, the amount then due on said bond. That on the 23d February, 1843, the said Company executed a mortgage to Richard J. Bond, on all the real estate of said Company, to secure $20,450.74; which was duly recorded-That on the 28th February, 1843, three several judgments were* recovered against tbe said Falls Co., in the Supreme Court.; one-in favor of Peter T. Smith, for $3,913.03 ; one in favor of Patrick Mahan, for $478; and one in favor of Andrew Carrigan,. for $2,780.
    That all the before mentioned mortgages and judgments were existing liens upon the real estate of said Falls Co. at the time of the appointment of the Receivers ; that large arrears of interest had accrued upon them ; and that, independent of the simple contract debts, not secured by mortgage or judgment liens, they amounted to a sum greatly beyond the real value of all the property of the said Company.
    They say that, the Receivers having reported to this Court-that it was necessary that the real estate, corporate rights and other property of the said Company should be sold for the payment of debts, an order was made on the 7th November, 1843,. directing the Receivers to make sale according to law of all the real estate of the said Company, and all the chartered rights, privileges and franchises belonging to them and appertaining to. their raceways, and all the right, title and interest of the said' Company of, in and to the same. And, the said Receivers having represented to the Legislature that the property of the said Company was incumbered for more than it would bring at public sale; that it was doubtful whether it could be sold without Legislative aid; and that the interests of the creditors of said Company would be promoted by a sale of such real estate, franchises and works clear of all incumbrance ; the Legislature, on the 15th February, 1844, passed the act entitled <£ An act to relieve the creditors of £ The Trenton Delaware Falls Co. ” by which act the Receivers were not only authorized to sell the real estate, franchises and works of the said Company at public sale, but wore authorized to sell the same free and clear of all incumbrance ; and to make to the purchaser as good and sufficient a title as the said Company had in the real estate, franchises and works, free and clear of all mortgages, judgments or other liens whatever; the purchasers to hold the said works, franchises and real estate as a joint stock Company, in the same manner as the original stockholders held the same; that after the said purchase the said company should be known as “ The Trenton Water Power Company,” and by that name might sue and be sued, have a common seal, and exercise all its corporate powers ; but that nothing in said act should be construed to affect the rights of the several creditors of the said “ The Trenton Delaware Falls Company” to receive their distributive share of the proceeds of the said sale according to law, or to invalidate-any existing leases made by said Company or assignment thereof.
    They admit that, on or about Feb’y 20, 1844, the Receivers-did sell all the real estate, works and franchises of the said Falls Co., as stated in the bill, and executed to the purchaser thereof a deed for the same; and that the purchaser, in pursuance of the said act of the Legislature, organized himself and his associates in said purchase into a corporation by the name of ££ The Trenton Water Power Company;” and that these defendants are the same Company, and now hold, possess, occupy and enjoy the said estate, works and franchises, and claim to be the landlords of the complainants, in place of said Falls Co., and to be entitled to collect and receive the rents due and to become'due from the complainants upon the said lease.
    They say that the Receivers sold the said real estate, works and franchises of the said Falls Co. free and clear of all mortgages, judgments or other liens whatsoever, as they were directed and authorized to do ; that said sale was confirmed by this Court, and the deed therefor was made by order of this Court, and the purchase money paid over to the Receivers on the delivery of the said deed; and that, by the express terms of the said deed and the said act of the Legislature, these defendants hold the said property free and clear from all incumbrances created by the said Falls Co., and subject only to the right, as they submit, of the lessees of the said'Falls Co. and the assignees of such lessees to draw water from the raceway of these defendants, in the manner prescribed by their leases, upon their paying the rents, and performing the duties therein reserved, to these defendants.
    They admit that said Wm. Potts, in behalf of himself and his cestuis que trust, claims to be entitled to collect and receive the whole amount of the rents due and to become due upon the said lease to the complainants, until they receive full payment and satisfaction of their debts ; but these defendants insist that the said Wm. Potts, as trustee as aforesaid, is not entitled to receive the said rents, or any part thereof; and they admit that they, these defendants, claim to be entitled to the said rents which have accrued since their purchase as aforesaid, and have given notice to the Company of their said claim, and requested them not to pay over the said rents, or any part thereof, to the said Wm. Potts, trustee as aforesaid.
    They say that the whole, real estate and property of the said Falls Co. was incumbered with mortgage and judgment liens, at the time they made the assignment of the said lease, to an amount which, with the interest and costs accrued thereon, have exhausted the whole of the purchase money, being $150,000, paid for the said real estate and property on the Receivers’ sale; and that the said Falls Co., after the assignment of the said lease, incumbered their real estate and property to a very large additional amount, by giving other mortgages and contracting debts upon which other judgments were recovered against them, none of which incumbrances so subsequently contracted have ever been paid, except some portion of the judgment of P. T. Smith ; and that it was in consequence of the existence of these large incumbrances, greatly exceeding the value of the works, that the Legislature, upon the representations of the Receivers, passed the act authorizing the sale to be made free and clear of all incumbrances whatever ; and they submit, that the reservation in the said act in favor of the leases of the Falls Co. and the assignment thereof was not intended to set up the said assignment to Wm. Potts, trustee as aforesaid, of the lease made to the complainants as an incumbrance upon the said real estate prior to all the legal incumbrances existing upon the same; and that the Legislature had no constitutional power to do so if they had so intended.
    They submit that the said assignment of the said lease created no legal incumbrance whatever upon the said real estate. And that the said Wm. Potts and his cesluis que trust never had any of their claims secured by mortgage or judgment against said Falls Co.; but were creditors at large, and only entitled, after the sale* as aforesaid, to be paid^ro rata with other creditors at large of said Falls Co., after all the mortgage and judgment creditors were satisfied out of the proceeds of said sale. And that, the whole. real estate and property of the said Falls Co. having been sold, as aforesaid, free and clear of incumbrance, and the purchase money exhausted in the satisfaction of existing liens, the said trustee and those whom he represents are not entitled to have their debts charged upon the estate so purchased in the hands of these defendants; which is, in effect, the claim set up by the said Wm. Potts and those whom he represents.
    They admit that the complainants are entitled to a deduction of rent for stoppage of water, for one month and fifteen days, and not for the time claimed by the bill.

      C. S. Green, for the complainants,
    to show that a bill of inter-pleader was their proper course, cited 1 Storifs Pl., sec. 293, 5;
      Smith’s Chan. Pr. 469, 471; 2 Hoff. Chan. Pr. 101, 104; 16 Ves. 203; 3 Green’s Ch. 277.

      S. G. Potts and P. D. Vroom for the Trenton Water Power Company.
    They cited 2 Bl. Com. 218; 1 Pow. on Mortgages, 171 ; Woodf. Landl. 83; 3 Halst. Rep. 314; 3 Peters, 448; Const. of the U. S., art. vii, sec. 10; 6 Cranch, 87; 1 Cond. U. S. Rep. 172; 3 Dall. 386; 1 Halst. Ch. Rep. 243.

      B. Williamson

    for Wm. Potts, trustee, and those whom he-represents.,
    The Chancellor, expressed an opinion that the Trenton Water Power Company were entitled to the rents.
    Whereupon the counsel for Wm. Potts, trustee, and the creditors he represents, applied for a re-hearing; which was allowed-
    The cause was re-argued hy

      Jos. C. Potts and B. Williamson ■ for the said trustee and the creditors represented by him.
    And by Stacy G. Potts for the Water Power Company! ,
   The Chancellor.

I see no way in which I. could decree that these rents be paid to Wm. Potts, trustee &e., but by declaring the Receivers’ sale void; or that it was made subject to incumbrances, and that the purchasers at the Receivers’ sale took it subject to all incumbrances, and subject, too, to the pledge, if it be such, of the rents receivable from Fish and Green, to pay the interest of the debts named in what is called the assignment to Potts, trustee &c., of the lease to Fish and Green.

But the Receivers’ sale was made free and clear of all incumbrances, and was confirmed by the Court. It cannot now be disturbed by any action of this Court. An appeal should have been taken from that decree of confirmation, as the only mode of correcting it if it was wrong. I cannot now declare that that sale was made subject to incumbrances.

From some facts stated in argument it would seem that, when the act for the sale free from incumbrances was applied for, it was understood by the parties who applied for it that Potts, trustee &c., should not he affected in his right to receive the rents from Fish and Green for the purposes stated in what is called the assignment to him of the lease to Fish and Green ; and I can very well imagine that the language used in the proviso of the act was understood by the parties applying for the act, or by those interested in the rents derivable from that lease, to be sufficient to protect Potts, trustee &c., in the receipt of those rents. But I do not see that the Court is at liberty to inquire what any person soliciting the passage of an act, or assenting to its passage, understood to be the meaning of its language. And, again, such understanding -would not affect the purchaser at the Boceivors’ sale, or prior or subsequent mortgages of the property.

The words “ assignment thereof,” in the clause, in the act of February, 1844, providing that nothing therein contained should be construed to invalidate any existing leases or assignment thereof, moan, assignment by the lessee or lessees, and not, assignment by the lessor.

My conclusion on the re-hearing is the same as on the first hearing — that the Water Power Company are entitled to the rents.

Order accordingly.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Mahlon Dickerson v. Robert P. Stoll and Joseph E. Edsall.
    The Court will not entertain a question of boundary between adjoining land owners.
    Bill filed April 5th, 1847, stating, that on the 24th of March, 1795, Elizabeth Stevens, being seized in fee of a tract of 275 acres of land, (in the bill described), sold and conveyed the same, by warranty deed, to Jonathan Dickerson, the father of the complainant ; which deed was recorded February 6th, 1813. That the said Jonathan Dickerson was in the peaceable possession and enjoyment of said land until his death, in 1805; and built a saw mill and dwelling house, and planted an orchard on the said tract.
    That Jonathan Dickerson died intestate, and a part of said land descended to the complainant; and he bought the remaining part of said tract'of the other heirs, and received their deeds therefor ;, and that the complainant has peaceably possessed and enjoyed the whole of said tract for more than twenty years last past.
    That, on or about March 2d, 1847, divers persons commenced cutting down the wood and timber on a part of said tract; and on inquiry the complainant was informed, and he believes, that Robert P. Stoll, with divers workmen employed by him, were engaged in cutting down said wood and timber.
    That the complainant, on the 3d of March, 1847, called on said Stoll and gave him notice that said wood and timber stood on complainant’s premises. That Stoll said he was acting under a contract or authority from Joseph E. Edsall; and then and there also stated, that he had been advised to obtain a bond of indemnity before he commenced cutting; and' that, before commencing to cut he had received a bond of indemnity; which bond, the complainant believes and charges, was given on behalf of said Edsall. And the bill states, that said Edsall is participating in said waste and trespasses, and has sold said wood and timber to said Stoll.
    That, notwithstanding said notice, the said Stoll and Edsall, with their workmen, continued to cut; and that they have already cut several hundred trees, among which are many very valuable timber trees. And complainant has been informed and believes, that said Stoll and Edsall intend to convert the wood they have cut into charcoal; part of it, including timber trees, having already been cut into cord wood. That the land on which they are cutting is not mere wood land, but valuable timber land; that, the timber upon it constitutes its principal value ; and that said timber is rapidly increasing in value, by reason of the increasing, demand therefor, and by reason of the public improvements proposed to he made upon or near said tract of land; and that said timber stands about three-quarters of a mile from the banks of the Morris canal; so that the complainant has good cause to anticipate in a few years a much larger price for said timber than could at present be obtained. And that said wood and timber is more valuable to the complainant than to other persons, by reason of its connection with his said farm and premises.
    That it will ho difficult, if not impossible, to calculate correctly the value of said wood and timber cut and intended to be converted into charcoal without measurement; and that the amount of damages could not well be ascertained in an action at law.
    That the complainant lives about eight miles from said tract, and cannot conveniently watch the defendants and those working under them, so as to know &c. •, and that the trespasses so committed and intended are ruinous, irreparable, and destructive of the future enjoyment of the premises by the complainant.
    That said defendants have no right or title whatever to said premises, and are persons of doubtful pecuniary circumstances.
    The bill prays, that the defendants may be decreed to account for the wood and timber by them cut, and for the damages occasioned to the complainant thereby; and that, in the meantime, the defendants may be restrained by injunction from cutting down any more wood and timber; and from charring, removing, or otherwise disposing of any wood or timber already cut; and from committing any other waste or spoil on said premises ; and for such other relief, &c.
    The injunction prayed was allowed.
    The defendants put in their separate answers.
    Edsall, in his answer, says, that he has no knowledge, information or belief, that there has been any wood or timber cut upon said tract so conveyed by said Elizabeth Stevens to said Jonathan Dickerson, by said Stoll or this defendant, or by any person under their authority.
    That if said Stoll has cut upon said tract, it has been without ■any authority or direction from this defendant.
    He .denies that he, or any person empowered by him, gave any indemnity or contract to Stoll to cut on said tract before mentioned.
    He says that he, being the owner of a tract adjoining the .tract before mentioned, on the 30th of January, 1847, by his attorney, Robert Hamilton, entered into a contract in writing with Stoll for the sale of the same, (setting out the contract.) It is a contract to sell and convey to Stoll, for $16 an acre, all that tract &c., bounded by lands of Mahlon Dickerson, the Mus•conetcong river, lands in possession of John Rowland and the turnpike road; supposed to contain thirty-five acres, more or less; being all the lands of said Joseph E. Edsall on the south side of the turnpike road and between that and the Musconetcong river, more or less ; the land to be surveyed, and a good and sufficient deed to be made therefor when the second payment thereinafter mentioned is made. And Stoll agrees to buy, and he gives his notes, endorsed by John Bell, for the amount, calculated at thirty-five acres, payable in equal thirds, one in four, one in eight, and one in twelve months. The agreement contains a provision for excess or deficiency in quantity upon a survey.
    That in 1836, the line between the tract mentioned in complainant’s bill and the said tract of this defendant being through wood and uncultivated land, and he being desirous of ascertaining the position of the same, he employed Joseph Linn, an efficient surveyor, to run said line. That said Linn, accompanied by this defendant and others, run said line, and fixed it near to, but a little to the westward of a line of marked trees afterwards marked by this defendant. That about 1845, being a practical surveyor himself, he made another survey of said line as accurately as possible; and his running and survey agreed with that of said Linn; and this defendant then marked said trees as above stated, a little to the eastward of where said Linn run the line; and, this defendant then believed and still believes, within his own land, in order to be safe in its location.
    That he afterwards informed the complainant where he made the line; and complainant told him he did not know where the line run, but expressed some doubt as to this defendant having it right.
    That, since the commencement of this suit, he procured Nathan Smith, an accurate surveyor, to run the said line to the westward of said line of marked trees and of any of the cutting.
    He says he had no participation in the said cutting. That by his contract with Stoll he intended to sell to complainant’s line ; and though he then was and still is satisfied that he owned fully to the said line of marked trees, if no further westward, yet he was anxious,' before ho made any conveyance, to have the complainant made satisfied with the line, to get him upon the ground with this defendant, and to have it surveyed by some surveyor in whom they both had confidence; and for this reason the survey of the land contracted to Stoll, as aforesaid, was kept open by said contract.
    He says he has understood, and believes it to be true, that since the injunction the complainant and said Stoll have made some agreement in respect to the wood and timber cut by said Stoll, by which said Stoll is to pay the complainant for so much thereof as may be found to have been cut on the complainant’s land; and in pursuance of which the said Stoll has taken and disposed of the same.
    He says that, both before and since the commencement of this suit,’ he has proposed to the complainant to agree with him upon any competent surveyor to go upon the land and survey and fix the said line between the said tracts of land, and to abide thereby; but the complainant has not seen proper so to do; and this defendant still professes himself ready to do so.
    The answer of Stoll is not important to the question involved.
    Testimony was taken on both sides, with a view of showing the’true .boundary line; and the case was brought to hearing on the pleadings and evidence.

      J. J. Scofield for the complainant; and the complainant pro se.

      R. Hamilton and D. Haines for the defendants.
    They cited 2 Green’s Ch. 279.
   The Chancellor.

It is a question of boundary between adjoining land owners. The complainant will be left to his action at law. If, after such action brought, the defendants, or either of them, proceed to cut again, an injunction can be applied for.

Bill dismissed.


author: The Chancellok.

text:
    Ephraim Beach v. William C. H. Waddell.
    A. conveyed to B. a lot of ground, fronting on Passaic river, used as a dock; tbe deed containing full covenants of seizin and warranty; and B. gave a mortgage on the lot for a part of the consideration money. To a bill for the foreclosure of the mortgage B. answered, that as to a part of the front and a strip running back to a point A. had no title; and afterwards filed a cross bill, praying a rescisión of the contract. A. was in possession of the whole when he conveyed to B., and claimed that his title and his deed to B. covered the whole. The defect, if any, in A.’s title was, not that the title or possession of any part of the lot was shown to be in any other person, but that A.’s deed, by the length of chain on one line and an alleged wrong course on another line, did not cover the whole lot. B, had not been evicted; and the question as to A.’s title to the whole was, at most, a disputed question as to the true boundary line between this lot and an adjoining lot owned by C. Held, that it was not a case for the rescisión of the contract between A. and B.
    Bill filed April 6,1841, to foreclose a mortgage, dated December 8, 1885, given by William C. H. Waddell, the defendant, to Ephraim Beach, the complainant, for $5,546.66, the consideration money for the lands therein mentioned, conveyed by said Beach to said Waddell, and to secure a bond also given therefor ; said sum to be paid in two equal payments, half on the 1st of April, 1837, and half on the 1st of April, 1838, with interest semi-annually; the mortgage being also executed by Julia Anne, wife of said Waddell; with a covenant in the mortgage that after default in payment the complainant might quietly enter &e.
    The hill states that the mortgage has been lost or mislaid, so that the complainant cannot make proferí of the same. That a large part of said mortgage remains unpaid.
    The answer of Waddell and wife, filed January 2, 1842, states, that the mortgage was given to secure a part of the purchase money of $8,320 for the same lands which were conveyed by the complainant to said Waddell by deed dated December 3, 1835, (setting out the deed). The deed contains a covenant, on the part of Beach, that he is the true, lawful and right owner of the lands thereby conveyed; and that the lands are not incumbered ; and that Beach has good right, full power and lawful authority to convey the same in manner aforesaid; with a full covenant of warranty.
    The answer then states, that Beach, when he made said deed, nor before or since, was not the owner of all said land $ nor had he good, right, &c., to convey the same; and charges that Beach knew it. That he, said Waddell, has not received and is not entitled to any estate in or the possession of all. said land; nor has he received any consideration for the balance or sum remaining due on said bond and mortgage; but that therein the consideration thereof hath wholly failed and been lost to him.
    That this defendant hath been defrauded in manner aforesaid, to his great injury and damage; that said bond and mortgage were obtained from him by- said Beach, and others in collusion with him, falsely and fraudulently representing to him, before the execution and delivery of said bond and mortgage, that said Beach was seized in fee of the whole and every part of the premises, and that the same were all in the possession of said Beach; whereas there was a considerable part of said premises not in the possession of said Beach, and which he had no right to convey. That said land and premises are only of value for a dock on the Passaic river; and that 104 feet are necessary for such purpose. That, at the time of the execution of said deed, a considerable part of said dock front, about 40 feet of the same, was in the possession of Condit & Co., lessees of Mrs. Carman, who have occupied, used and claimed, and still occupy, use and claim title to said 40 feet of dock. And that this defendant has been informed by the attorney of Mrs. Carman that her husband was, for several years before his death, (which was eight or ten years ago,) and she has been since, in possession of part of said dock described in said deed from Beach to the defendant; and that she will not, in case Condit & Co. give up possession of the premises leased to them, give up possession to any person. That said 40 feet is material and absolutely necessary to the convenient enjoyment of the rest of said land, and that said dock is completely valueless without it. That Beach, when he executed said deed, knew that said 40 feet was in the possession of the lessees of Mrs. Carman, and that said possession was adverse to his possession and claim of title to said 40 feet; and that by fraud and imposition, knowing, &c., he induced this defendant to take said deed, and execute, for part of the purchase money, the said bond and indenture of mortgage. That Beach did not disclose the fact that the possession of said 40 feet was in the lessees of Mrs. Carman under a title adverse to said Beach; and that this defendant could not discover the same by the abstract of title. That at different times, before this defendant had in any manner become acquainted with the defect of title before mentioned, to wit, the adverse possession of about 40 feet of said dock, he paid to said Beach, on said bond and mortgage, the following sums, to wit, October 1, 1836, $166.40; April 28,183T, $1000; January 13,1838, $1000 ; April 1,1838, $500. That as soon as he became acquainted with said defect of title he wholly refused to make any further payment.
    On the 15th of January, 1842, Waddell filed his cross bill against Beach.
    This bill states the facts stated in the foregoing answer; and states, further, that he has not used or occupied the said land and premises as a dock since he became aware of said defect of title in said 40 feet. That Beach lived within a few hundred yards of said dock when said deed was executed and delivered, and W'ell knew that said lessees of Mrs. Carman had possession of said 40 feet of dock, and did not inform or intimate the said fact at the time of the delivery of said deed in any wmy or manner to this complainant.
    That after this complainant refused to make any further payment, when both Beach and this complainant were citizens of N. Y., Beach commenced an action of debt on said bond in the Supreme Court of N. Y., on or about June 29,1838. That under a provision of the Revised Statutes of N. Y. that a seal shall be only presumptive evidence of sufficient consideration, and may be rebutted in the same manner as if the instrument was not sealed, this complainant pleaded, in that action, in substance, the •matters hereinbefore stated; and that, on January, T, 1889, the isaid action wds discontinued by said Beach, he paying the costs.
    That afterwards, when both Beach and this complainant were •citizens of New York, Beach commenced an action of debt on said bond and mortgage in the Circuit Court for Essex county, in this State, against this complainant; to which action this complainant pleaded, &c. That Beach has demurred to the 2d, 3d and 4th pleas, and replied to the first]; which demurrer and replication were filed on the 18th of March, 1841; and this complainant has joined in said demurrer.
    This bill prays, that Beach may be decreed to cancel said bond and mortgage, and to repay to the complainant the purchase money and interest paid by the complainant to him for the said deed; and that, in the meantime, the said Beach may be restrained from proceeding in said action in said Circuit Court for Essex county, and from prosecuting any other action against the complainant on the said bond; the complainant offering to reconvey to said Beach; and for such other and further relief, &c.
    To this cross bill Beach put in his answer, filed February 3d, 1843, stating, that in the summer or fall of 1835, he entered into an agreement with C. O. Bolles and Abel Thompson, for the sale of certain real estate in Newark, including the lands mentioned in the deed set forth in the bill. That, it being intended by said Bolles and Thompson to associate others with them in the purchase, and to put up the same in lots at public sale, it was agreed between him and said Bolles and Thompson, that he should continue to hold the title, and, at the request of them and their associates, make to the several purchasers of lots, at such public sale, deeds, &c.; and that he, this defendant, would receive from said Bolles and Thompson, in part payment &c., the bonds and mortgages of such purchasers of lots, or such of them as he should select, to be executed by such purchasers of lots to this defendant. That afterwards, in or about November of said year, such public sale of lots was made by said Bolles and Thompson and their associates; and that at such sale the complainant bid for tbe tract mentioned in tbe deed set forth in the bill, and being the highest bidder, the same was struck off to him, for $8,320. That, pursuant &c., this defendant, together with his wife, at the request of said Bolles and Thompson and their associates, executed the deed in the bill mentioned, and •handed it to said Bolles and Thompson and their associates, or some of them, to be delivered to the complainant, by and with the consent of this defendant, at their request. That the bond of the complainant, and the mortgage of the complainant and his wife, mentioned in the bill, wore made by them for $5,546.60, part of the purchase money of said tract so struck off to the complainant, and were by the complainant delivered to said Bolles and Thompson and their associates, to be disposed of by them as they saw fit in their discretion. That said complainant paid to said Bolles and Thompson and their associates $2,163.34, on account of the purchase money for said tract so purchased by said complainant; and that no part of the same was paid or ever came to the hands of this defendant. That said bond and mortgage were delivered to this defendant by said Bolles and Thompson and their associates; this defendant having selected the same, according to said agreement &c., together with divers other bonds and mortgages of other persons, in payment of a part of the consideration money of the said sale by this defendant to said Bolles and Thompson; that said consideration money being $15,000. That said Bolles and Thompson and their associates sold the said lands bought by them from this defendant as aforesaid, for $125,000. That the price or consideration at which this defendant really sold and conveyed to the complainant as aforesaid would not exceed $5,000, or thereabouts, if the price at which this defendant sold the whole of said lands were divided and distributed among the several lots in which the same were sold by said Bolles and Thompson and their associates according to the relative and respective values of the several lots of the same.
    That, before the making of said agreement by this defendant with said Bolles and Thompson, and before the said public sale of lots, a full and complete search and abstract of the title of this defendant were made, at the request and under the direction and superintendence óf said Bolles and Thompson, at the expense of this defendant, showing the claim of title of the same parcels of said lands of this defendant; and that said Bolles and Thompson and their associates were fully satisfied that this defendant was seized and well entitled to the fee and inheritance of the said lands, including the parcel so conveyed to the complainant as aforesaid, and that no incumbrance existed on said last mentioned tract.
    That the complainant, when he bid off said tract, and when he made and delivered said bond and mortgage, well knew that this defendant had sold said lands to said Bolles and Thompson, for said sum of $75,000, and that such agreement had been made by and between them as aforesaid; and that this defendant would convey said tract to the complainant only upon the request of said Bolles and Thompson, in pursuance of such agreement as aforesaid; that this defendant would continue to hold the title upon such agreement as aforesaid; that this defendant would receive the said bond and mortgage of the complainant, if at all, only towards the payment of said sum of $75,000; that such search and abstract had been made as aforesaid, and the result thereof; and that this defendant would'not receive any part of the money to be paid by the complainant on the said purchase by him, over and above the amount secured by said bond and mortgage; and all the other facts, matters and things hereinbefore set forth and alleged. And that the complainant was one of the associates of the Said C. O. Bolles and Thompson in the purchase of said lands from this defendant; and, as such, entitled, by a contract made by and between the complainant and said Bolles and Thompson, to three of the seventy-five shares, of $1,000 each, into which the ownership of said lands was divided among said Bolles and Thompson and their associates.
    The defendant denies that, otherwise than as above set forth, the complainant, on or about December 3d, 1835, or at any other time, agreed to purchase of this defendant the said land in said bill mentioned; and that this defendant, at that or any other time, represented himself to be seized or entitled in fee simple, or to have full power to dispose of the fee simple of the whole or every part or any part of said tract of land, otherwise than by the covenants in said deed, and as appeared by the result of the search and abstract of title so made as aforesaid.
    He denies that said bond and mortgage were delivered to him, otherwise than as before mentioned ; and he denies that the same were accepted or received by him, except, as before stated, from said Bollos and Thompson'and their associates, in payment, to the extent of the money secured thereby, of the purchase money of said lauds so sold by this defendant to said Bolles and Thompson.
    That he believes and insists, that, before and at the execution of said deed and bond and mortgage, he was the lawful and right owner of all the land in said deed described, and seized in fee of every part thereof, and had full power and authority to convey the same, and that he then so fully believed.
    He denies that the complainant has been defrauded to his great injury and damage as set forth in the bill, and that said bond and mortgage were obtained from complainant by this defendant and others in collusion with him, or otherwise, by fraud, covin or other misrepresentation; and that this defendant, or others in collusion with him, falsely and fraudulently represented' to the complainant, at any time, that this defendant was in possession of said tract or any part thereof; and he saith that no representation whatever was made by him, or any person in his behalf, to the complainant, or any other person, in reference to-the possession, use, occupancy or enjoyment of the said tract in this defendant or otherwise.
    Ho denies that a considerable or any part of said tract was at the time of the making said deed and bond and mortgage out of the possession of this defendant; and saith, that the whole of said tract was in the possession of this defendant; and that, as he verily believes and insists, he had good right to convey the same, and to deliver the possession thereof; and that, by virtue of said deed, he did deliver to the complainant full and indisputable possession of the whole of said tract.
    He says that the principal, but not the only value of saiA tract, consists in its use and adaptation for the purposes of a dock; but denies that 104 feet are necessary for such use.
    He denies that at the time of the execution of said deed a considerable, or any part of said tract, was in the possession of Condit & Co., or any other person, as the lessees of Mrs. Car-man, and that the said Mrs. Carman, or the said Condit & Co., •or any other person as the lessee had occupied or used the same, or any part thereof, or that she or they at the time of the filing of the said bill occupied or used the same.
    He says he does not know, nor has he been informed, save by the bill, and cannot state as to his belief or otherwise, whether or not the said Mrs. Carman, or the said Condit & Co. as her lessees, claim title to said tract, or any part thereof, nor whether or not the complainant was informed by the attorney of Mrs. ■Carman, &c., as set forth in the bill; but he says that] the said Mrs. Carman was not, nor was her husband at any time, as far as this defendant knows, and as he verily believes, ever in the possession of the said tract or any part thereof.
    He denies that said 40 feet is absolutely necessary to the convenient enjoyment of the rest of said tract, and that without it the said dock is rendered completely valueless; and says that, though he admits 'that said 40 feet is material and important to the value of said dock, the same is very valuable without said 40 feet.
    He says that, as far as he knows, as he verily believes, neither said Mrs. Carman nor her husband ever had any title or interest whatever in said tract or any part thereof.
    That he does not know, nor can he state as to his belief or otherwise, whether the complainant has ever used or oceupied the said tract of land.
    He admits the several payments stated in the bill. Admits the bringing the action in New York, stated in the bill; he and complainant being then residents in New York; and the plea in that action, and the discontinuance and payment of costs, as stated in the bill.
    Admits the action in the Circuit Court of Essex stated in bill, when both he and complainant were citizens of New York, and admits that such proceedings were had in that action as in the bill is set forth.
    He says he believes, and insists, that the complainant has a good and sufficient title to the said tract and every part thereof; and saith that the complainant hath not been in any way disturbed in the possession, use and occupation of the same; and that, ever since the making of said deed, he has been, or might have been but for his own neglect or miscarriage, in the receipt of all the rents, issues and profits thereof, without the molestation, hindrance or denial of any person whatever.
    He submits and insists, that the complainant is bound, in law and equity, to pay him what is due on said bond and mortgage; that the injunction should be dissolved, and be be allowed to proceed in his action on the bond and on his foreclosure bill; that if it shall be ascertained that any defect exists in the title to any part of said tract the said bond and mortgage should not be declared void, or be decreed to be given up to be cancelled; nor should he be decreed to pay back the moneys received by him thereon, or any part thereof; but that such deduction and abatement should bo ordered by this Court upon the said bond as shall be equitable and just.
    Testimony was taken on both sides for the purpose of showing whether or not Beach’s title was co-extensive with the deed given by him.

      A. C. M. Pennington for Beach.

      A. Gifford and P. D. Vroom for Waddell.
    They cited 2 Wheeler’s C. L. 487; 5 Mass. Rep. 357; 2 Amer. C. L. 485; Jerem. Eq. Jur. 458; 2 Story’s Eq. Jur. sec. 778; 3 Green’s Ch. Rep. 212; 1 Sugd. on Vendors, 263.
   The Chancellok.

The defect, if any, in Beach’s title is, not that the title or possession of any part of the lot is shown to have been in any other person ; but that Beach’s deed, by the length of chain on one line and an alleged wrong course on another line, does not coyer the whole lot. Beach was in possession of the whole at the time of the conveyance to Waddell; and claims that his title and his deed to Waddell covers the whole. There has been no eviction of Waddell; and Beach’s deed to Waddell contains full covenants of seizin and warranty. If there be any question as to Beach’s title to the whole, it is, at most, only a disputed question as to the true boundary line between this lot and an adjoining lot owned by Carman. Under these circumstances it is not a case for the rescisión of the contract between Beach and Waddell.

If this Court could entertain the question as to the boundary line, a decision between these parties, in favor of Beach, would not bind Carman. Carman is not, and it is not perceived how he could be made a party in this suit. This goes to show, that this Court cannot interpose in favor of Waddell, unless he shall be evicted by due course of law.

In this view of the case it is not necessary for me to consider, whether it would be a case for the rescisión of the whole contract, if the title of Beach to the strip alleged by Waddell to be in Carman should prove defective.

Decree for the complainant in the original bill.


text:
    Catherine Higgins v. The Mayor and Common Council of Princeton, and others.
    Whether there is any power under a charter to ordain and provide the means for the erection of a market-house, and whether, if there be such power, it has been legally exercised; and whether a market-house can be lawfully erected on a part of the main street running through a city, are questions of law, which this Court will not entertain, unless there be something further, in the case presented, which is within the jurisdiction of the Court, and which calls for its equitable interposition.

      Quere: whether a market-house in such a street is a nuisance.
    If it be, it is a public nuisance; and this is not the Court for the correction of public abuses.

    That a dwelling-house in the neighborhood of the propo3ed site for a market-house would be less eligible as a dwelling-house, is not that kind of private injury to grow out of a public nuisance which would authorize the interposition of a Court of Equity.
    On the 27tli November, 1822, tlie Legislature passed “An act for the incorporation of the town of Princetonby which it is provided: That the Mayor, Recorder, Aldermen and Assistants, or a majority of them of which the Mayor or Recorder shall be one, may, from time to time, hold a common council within said Borough, at such place as the Mayor, or in his absence the Recorder shall appoint, and make such by-laws, ordinances and regulations, in writing, not repugnant to the laws and Constitution of this State or of the United States, and the same to enforce, revoke, alter and amend, as to them shall appear necessary for the well ordering and governing of the said Borough and the inhabitants thereof; to appoint a Borough Treasurer, Clerk, Marshal, and such other subordinate officers as they may think necessary for the good government of the said Borough ; and to annex such fees to the several offices of the Corporation as &c.; and to impose and tax reasonable fines and amercements against and upon all persons who shall offend against the laws, ordinances and regulations of the Corporation, made as aforesaid: Provided that no fine or amercement shall exceed $20.
    That the inhabitants of the Borough, at their annual town meetings, may vote such sum or sums of money as they may think necessary to be raised for the ensuing year, for the exigencies of the said Borough; which sum shall be assessed upon the inhabitants by the Assessor, agreeably to the laws and regulations to be made by the Common Council for the purpose, and collected by the Collector at such time, and be paid and disposed of in such manner as the Common Council shall direct; and if no sum, or an insufficient sum. shall be voted to be raised, and the interest of the Borough require it, the Common Council are authorized to call a meeting of the inhabitants, by advertisement, giving at least five days notice, and propose to them the sum in their opinion necessary to be raised ; and whatever sum the inhabitants shall, by plurality of voices, vote to be raised, shall be assessed and collected, paid and disposed of in manner aforesaid: Provided that any person may appeal from his assessment to the Common Council.
    That all such improvements on or in front of vacant lots as shall or may be authorized or required to be made by any law, ordinance, regulation or other act of the said Corporation, shall be made by an equitable assessment upon the inhabitants of said Corporation.
    On the 30th July, 1850, Catherine Higgins exhibited her bill in this Court, stating the act of incorporation; and that an annual meeting of the inhabitants of the Borough was held on the first Monday of April, 1850, for the purpose of holding the annual election for officers ; and that, after the election of officers was over, and without any public notice having been previously given to the inhabitants, and in the absence of some persons who, having voted at the election, had left the polls, and in the absence of a very large majority of the lawful voters of said Borough, resolutions were offered and passed, in effect, that a market house should be erected in the Borough; and also that $1,000 be raised by tax to build said market house ; and that the Mayor should call the citizens together within one week, to select a proper site for the building ; and that the said market should not bo located in the main street between the City Hotel and Washington street.
    That the vote upon the question whether there should be a market house was carried in the affirmative by only one vote — - 23 voting for, and 22 against it.
    That the complainant hath been informed, that there were some unlawful vote or votes received in taking that question, and she believes it to be true ; and, further, that she has been informed and believes, that the vote was instigated by the butchers of the town, rather than by those whom the butchers supply.
    That no meeting of the inhabitants was called by the Mayor in pursuance of said resolution for the purpose of selecting a site for said market house ; but, on the contrary, that only one meeting for such purpose was held, and that was held on the 8th April, 1850, at the call of A. L. Martin, Clerk pro tern, of said Common Council; which said call did not show that it was made in pursuance of said above mentioned resolution ; and that it was not signed in the name of the Mayor, nor by the order of the Mayor, as neither the name of the Mayor nor the order of the Mayor appeared in said call, although said call was in writing.
    That at the said meeting of a portion of the inhabitants, held in pursuance of said call of said A. L. Martin, there was some misunderstanding among some of the said inhabitants then present as to the specific object of the meeting and as to the powers of the said meeting; and that a motion was made to adjourn the said meeting to some future day, in order more fully to arrive at the wish of the majority of the inhabitants respecting the said market house ; that such motion was declared to be out of order ; and that a vote was then taken by a large portion of the persons then present, a majority of whom voted to locate the said market house somewhere between the City Hotel and Washington street, being the site previously voted against as aforesaid.
    That the said Common Council, a majority of whom, if not the whole number, as the complainant has been informed and believes, were and still are of opinion that the said market house ought not to be erected on the site so selected at the said meeting held on the said 8th of April, 1850, nor at any other site in the said street, being the main street through the said Borough; yet that said Common Council seem to be under the impression that the vote so taken at the meeting last mentioned should be considered as the wish of the majority of the inhabitants, and that they, the Common Council, were bound in duty to locate said market house accordingly, notwithstanding the judgment and opinion of a majority of said Council would have led them to decide that such location was impolitic, tending to disfigure and •obstruct the said street, and hurtful to the interests of the market itself.
    That said Council, whose duty in the premises, as the complainant charges, was, to locate said market house, if they deemed it beneficial to said inhabitants to have a market house in said Borough, at such place as would in their judgment and under the responsibility of their sworn trust as guardians of the private rights of the citizens as well as the public interest of the Borough, best promote the welfare of the inhabitants and the pros - erity of the town. And the complainant submits,'that, even if a majority of the inhabitants had expressed a wish to locate the •said market house at a place which the said Council should have deemed improper and unsuitable, it would have been the duty of the said Council to have disregarded the votes of the majority of voters, and acted with respect to their own views of the rights of the minority and of those citizens who are interested in the question, but who go not to the polls to vote, and of the general interest of the Borough.
    That the complainant is informed and believes it to be true, that the Common Council have not ordained in due and solemn form that the interest of the inhabitants of said Borough requires a market house; nor have they passed any ordinance or law, as the complainant has been informed and believes, authorizing the erection of any market house in the main street of said Borough, nor in any other part of said Borough.
    That the complainant has been informed and believes, that the said Common Council have made a contract with one Noah Green to erect the said market house, on a site selected under the vote taken on the 8th of April, 1850, as aforesaid; the same being in the said Main street, between the City Hotel and Washington street, and nearly opposite the residence of the complainant; and that Noah Green has been preparing to erect said market house, on said site, and is now progressing in the erection thereof, having brought, or caused to be brought on the ground, for that purpose, materials for the same, such as earth, iron columns or posts, and timbers; and is engaged, with several men, in erecting the said market house, with the utmost speed, as if to discourage the complainant and other inhabitants aggrieved thereby from taking legal measures to arrest it.
    That the value of the property whereon the complainant now resides, in which not only she, but her children, several of whom are minors, are interested, they being the owners thereof, will be greatly depreciated if the said market house should be erected where it is now about to be erected; the same being only about 100 feet from the said residence of the complainant.
    That the market house is not only an obstruction to the highway, but will render the residence of the complainant a less valuable one than it now is, by several hundred dollars. That the circumstances connected with a market in any place, but especially in a small town like Princeton, where ordinances and stringent regulations for the government and management of a market cannot well be enforced, are calculated to collect noisy boys and negroes at night; to draw insects, and to emit noxious smells, and to exhibit many unsightly objects, and exert an impure influence which the complainant cannot well set forth, but which are apparent; all of which tend to make a market house standing in a public road, unpaved, as is the said street, a nuisance to any respectable dwelling house at the distance of that of the complainant; and that the complainant feels that she and her family, being principally females, some of whom are minors, of whom she is the guardian, will be greatly and irreparably damaged in their pecuniary affairs and real estate, besides being subjected to great personal annoyance and discomforts, in case said market house should be erected as is now contemplated and about to be done.
    That many years ago a market house was built in the said street, near to the site where the present one is now going up, but a little further from the residence of the complainant; and that said market house was taken down about 15 years ago, by the Common Council of said Borough, or by their order, principally, if not entirely, because it was considered a nuisance in the street, obstructing the great thoroughfare of the town, drawing noisy, and turbulent boys and men to it, as a fit place of resort for amusement and disorder, and as unsuitable to a market place because of the dust of the street, and of the little use of such house. And the complainant shows, that the same objections then urged against the former market house are valid against the present one, with the additional fact that the town has extended, and is not as compact as it then was, thereby rendering the distance to a large portion of the inhabitants much greater than then.
    That while the vote taken on the day of the annual meeting in April, aforesaid, to the effect that a market house should be built, and $1,000 be raised by tax for that object, was a vote of only 23 in favor and 22 against it, a larger number-of inhabitants than the whole number of those who voted either for or against the measure, to wit, about 60 persons, including the largest tax payers in the Borough, remonstrated, in writing, with the Council, against the erecting of said market house ; and a much larger number, embracing, as the complainant fully believes, a very large majority of the inhabitants of said Borough, are opposed to the erection of a market house in any part of the Borough, but especially in the place where it is now about to be erected, in the main street of the town.
    That the number of inhabitants of said Borough lawfully entitled to vote for officers is about 250, and that the population of the Borough is supposed to amount to about 2,000. That a large number of inhabitants consists of widows and other property owners who do not go to the polls to vote, but who are deeply interested in tho question of a market house, and whoso remonstrances ought not to he disregarded. That the complainant fully believes, from what she hears from many of the inhabitants, and from other evidence within her own knowledge, that a market house is not demanded in the said Borough, but is opposed by a large majority of the citizens of said Borough; and that a large number even of those who desire a market house, perhaps a majority of them, object to the erection of it in the main street of the town.
    That on the 4th May, 1850, the Common Council passed an ordinance for the assessment and collection of the money voted at the aforesaid annual meeting for tho use of the Borough; in which ordinance it was made the duty of the Assessor to assess the sum of $|1700, equitably upon all &c.; which the Assessor shall sot down in writing, that the Common Council may ascertain that every individual is duly and justly assessed.
    That the Collector of the Borough has demanded of the complainant a certain sum, for tax, the principal part of which was for the building of the market house. That the complainant, never having been Called on by the Assessor for an account of her property made rateable by the said ordinance, was ignorant whether said tax against her was just or not; and upon inquiry has learned that the Assessor had very generally neglected to call upon the citizens, to assoss their property, but had made his assessment without an account being rendered to him, by the said inhabitants, upon application. And the complainant, further inquiring into the inode and principle of said assessment, ascertained that the said Assessor had not pursued the directions given in said ordinance, but had omitted and neglected to assess any portion of said tax on much if not all of the chattels, effects and estates of taxable persons within said Borough, whereby the land of the complainant and of other citizens was unfairly and unjustly taxed. That said Collector is diligent in collecting all the taxes he can collect, and refers the complainant and others who feel aggrieved to the Common Council, who sit to hear appeals in cases of taxation in August next.
    That, unless the said Collector and the said Common Council and said Noah Green be restrained from collecting said tax and from erecting the said market house, the complainant will be aggrieved and will sustain injury, and will, in a great measure, be without adequate redress in a court of common law, as she is informed ; and that an unauthorized debt will be entailed upon the inhabitants of said Borough, caused by erecting a market house at a greater cost than was ever directed at the last annual meeting.
    That the said main street is not, as the complainant is informed and believes, subject to such or any other encroachment, either by the said Common Council or by any other body or persons ; that the said street is not the property of said Borough,' and cannot be taken, altered or obstructed by any order or ordinance of said Borough for the purpose of erecting a market house or any other building thereon; that the jurisdiction and power of said Council do not x’each and affect the said main street in the same manner and extent as they affect and control the other streets of said Borough.
    That said main street is the ancient road known in law as u The great road leading from Elizabeth Town to Trenton,” and can be occupied and altered only in pursuance of the laws of this State concerning roads ; and the complainant submits, whether this highway is under the control of said Common Council, and whether said Council have any better right to erect a market house or any other house in said great road than any other body or individuals have; and whether said road is not secured for public traveling and for no other purpose; and whether the building of a market house in said road is not in violation of the laws of this State and prejudicial to the rights of travelex’S on Said highway.

      That the said market house, if erected where it is about to be erected, will necessarily incommode and obstruct traveling on. said highway, &c.
    The bill prays that the Common Council and Noah Green may desist from any further erecting the said market, and the said Collector from collecting the said Borough tax, till the legality of its assessment may be examined before the proper tribunal; and that the complainant shall have such further and other relief &c.; and prays injunction and subpoena.
    An injunction was granted, by Master Ewing, pursuant to the prayer of the bill.
    On the 10th July, 1850, the defendants put in their joint and several answer.
    The answer admits the annual meeting stated in the bill; and that at such meeting certain resolutions were adopted upon the subject of erecting a market house; but the defendants deny that said resolutions were adopted in the manner and under the circumstances set forth in the bill; but allege that after the said meeting was organized, and at about 11 o’clock in the forenoon, a resolution was adopted in the following words, to wit: “ Resolved, that a vote whether a market house be erected or not be taken at 3 o’clock this afternoon.” That no opposition was made to this resolution, and that, immediately after its adoption, public proclamation was made, and notice given by the presiding officer of the meeting, that at 3 in the afternoon the people would be called upon to vote upon the question of erecting a market house ; and again, at about half-past 1, after the polls had been closed and the votes counted, and when a very large number of persons were present to hear the result of the election, public notice was again given by the presiding officer that at 3 o’clock the question of the market house would come up for decision. That when the hour of 3 arrived, and after a statement had been made, by the late Mayor, of the finances of the Borough, the following resolutions were adopted: “Resolved, that $300 be raised by tax to pay the existing debts ; Resolved, that a market house be erected in the Borough: Resolved, that $1,000 be raised by tax to build said market house : Resolved, that the Mayor call the citizens within one week to select a proper site for the building : Resolved, that $150 be raised by tax for .the purpose of cisterns in the Borough: Resolved, that $50 be raised by tax for the use of the Fire Department.”
    That these, as appears by the minutes of said meeting, are the only resolutions that were adopted ; no such resolution as that stated in the bill, to the effect that the market house should not be located in the main street between the City Hotel and Washington street was, so far as these defendants know or believe, adopted.
    That, in pursuance of one of the said resolutions, a meeting of the citizens was called for the purpose of selecting a site for the market house, to be held on the 8th of April; printed notices of which were set up &c., and a copy inserted in the Princeton Whig, signed by A. L. Martin, Clerk pro tern., by the express order and direction of the Mayor.
    That the Common Council, at a meeting held on the 3d of April, two days after the annual meeting, passed the following resolutions : “ Resolved, that the inhabitants be called together to determine where the market house shall be located, on Monday next, the 8th inst., at 3 o’clock P. M., at the house of J. V. D. Joline: Resolved, that the notice be by printed hand-bills.” That thus the sanction of the Common Council was given to this meeting of the inhabitants for the purpose of selecting a site for the proposed market house.
    The answer then states the meeting on the 8th, and the result of it; and that a large majority voted for the site on which &c.
    The answer denies that the Common Council or a majority of them are, or ever have been, of the opinion that the market house ought not to be located on the site selected at said meeting.
    It states, that, although it be true, as stated in the bill, that the Common Council have not ordained in due and solemn form that the interests of the inhabitants of the Borough require a market house, or passed any ordinance or law authorizing the erection of a market house, yet they have done all that was deemed necessary or proper for them to do in the premises. That at a meeting of said Council, held as early as April 9,1850, a special committee was appointed upon the subject of a market house, and that, on the 3d June, thereafter, the committee made a report recommending that the building be located in front of the City Hotel, &c., (the place designated,) which report was adopted by the Common Council on that day; and on the same day it was resolved, that the market house be constructed op the plan &c. of the market house in Trenton, (dimensions given;) and, by another resolution, the Mayor was authorized to invite proposals for constructing the building. That, at a meeting of the Common Council, held June 10th, several proposals were presented; and that of Noah Green, being the lowest, was accepted ; and the committee on the market house were instructed to contract with him. That a contract in writing was executed, and reported to a subsequent meeting of the Common Council, and approved by them; and the said Noah Green had furnished all the materials necessary for the completion of the building, and was preparing the roof for being tinned when he was restrained by the injunction.
    The answer denies that the complainant’s property will be depreciated, and says that the defendants are satisfied that it will be rendered intrinsically more valuable, although as a private residence it may be made less private and therefore less agreeable. It states what the old market was; and that it had a town house and Borough prison connected with it. It contains statements as to said highway; and denies that the market house will be any obstruction to it.
    A motion was made to dissolve the injunction.

      John P. Stockton and R. S. Field in support of the motion.
    They cited Story’s Eq. Jur., sec. 925; Saxton’s Ch. 476, 695; 16 Ves. 342; Ambler, 158; 1 Green’s Ch. 64; 2 Ib. 355, 136, 426; 18 Ves. 211; 3 Atk. 751; 1 Halst. Ch. Rep. 14, 81; 1 Barbour’s Ch. Prac. 642; 2 John. Ch. 148, 204; 1 Bland,
      355; 3 Green’s Ch. 446; Angell & Ames on Corporations, 604; 1 Paige, 311; 2 Green’s Ch. 482.

      Hageman and James S. Green contra.

      They cited 2 Bl. Com. 175; 2 Watts, 23; 4 Peters, 168; Saxt. Ch. 540; 2 John. Rep. 357; 15 Ib. 447; 6 Peters, 431, 499, 538 ; 1 Halst. Rep. 352; 4 Paige, 510; 12 Peters, 91; 19 Ves. 622; 6 John. Ch., Nuisance; Angell on Tide Waters, 121; 2 John. Ch. Rep. 162 5 Ib. 101; 9 Paige, 323; Saxt. Ch. 157, 694; 1 Green’s Ch. 183; 13 Peters, 587; 11 Peters, 420, 557; 2 Peters, 558.
   The Chancellor.

Whether there is any power under the charter to ordain and provide the means for the erection of a market-house, and whether, if there be such power, it has been legally exercised; and whether a market-house can be lawfully erected on any part of the main road running through Princeton, are questions of law which this Court will not entertain, unless there be something further, in the case presented, which is within the proper jurisdiction of the Court, and which calls for its equitable interposition. If this Court should entertain an opinion against the defendants on all the questions above stated, there would be no ground for its interposition by injunction, unless the case could be brought within the class of cases in which the Court interferes for the prevention of nuisances. The injunction cannot be retained unless a market-house in the place selected can be declared a nuisance. I am not prepared to say it would be a nuisance.

But if a nuisance, it would be a public nuisance; and this is' not the Court for the correction of public abuses. And I do not' consider the fact that a dwelling-house in the neighborhood might be less eligible as a dwelling-house to be that kind of private 1njury to grow out of a public nuisance which would authorize-the interposition of this Court. And I see no such irreparable injury to result to the complainant as should induce its interposition by injunction. The question involved should therefore be-left to the action of the law courts.

As to the obstruction of the public road, if the market-house-would be such obstruction, and it be made without authority, it would be a public abuse, for the correction of which this is not the proper tribunal.

Without deciding, therefore, the several questions argued, as to the powers given by the charter, &c., I shall dissolve the injunction on the ground that I do not think it a case for an injunction.

Injunction dissolved.