author: The Chancellor.

text:
    THE AMERICAN LIFE AND FIRE INSURANCE AND TRUST COMPANY v. PETER M. RYERSON.
    1. When a mortgage is foreclosed for default of payment of an installment, the residue of the money not being due, the whole premises will not be directed to be sold unless a necessity for such a course exists; and when in such a case a decree has been entered for the sale of the whole premises, the court will, in its discretion, regulate the process of execution under the decree.
    2. A borrowed money of B on an agreement, making it payable in installments, and gave his notes for the payment of the installments, and a decree in this court against A was assigned to B as collateral security for the payment of the notes. The decree assigned was general, that the mortgaged premises be sold to pay the whole sum mentioned in the decree, and that a fi. fa. issue for the sale of so much of the mortgaged premises as would be sufficient to pay the said sum. The mortgaged premises were manifestly divisible. An installment having become due, the .sheriff was about to sell under the decree to raise the whole sum. He was restrained by order of the court. And subsequently, on a motion to vacate the order, it was held that the decree could be used only so far, and at such times as should be necessary to enforce the performance of the principal agreement, (the agreement i.n which the money was borrowed and the notes given,) and in the same way as if the court had been asked to direct process of execution on the decree in view of the principal agreement.
    3. The motion to vacate the order was denied, and a sale was directed of so much of the mortgaged premises as would be sufficient to pay the installment which had become due.
    ■On the 13th October, 1840, “ The American Life rad Fire Insurance and Trust Company ” Sled their bill against Peter M. Ryerson and wife, and others, to foreclose a mortgage, dated July 10th, 1835, given by Ryerson and his wife to the said company, to secure the payment of a bond of the same date, given bv Ryerson to the company, conditioned for the payment of $20,000, in five years from date, with interest, payable half yearly.; with a provision that in case the interest should at any time be in arrear for ninety days, the whole principal should be forthwith paid. Two years’interest was due when the bill was filed. To this bill Ryerson filed an answer, on the 24th May 1841, setting up usury. On the 6th of July, 1842, the company made an assignment to Patrick McCauley, Geo. F. Taiman and Anthony Barclay, in trust, &c.
    The assignment authorizing two of the trustees to act, Barclay declined accepting the trust; McCauley and Taiman accepted. On the 10th of October, 1844, McCauley and Taiman and “ The American Life and Fire Insurance and Trust Company” filed a bill called an original bill in the nature of a supplemental bill, stating the assignment, &e. To' this bill Ryerson, on the 5th of March, 1845, filed an answer, setting up the usury again, and admitting the assignment to McCauley and Taiman. No replication to this answer was put in. No future proceeding was had in the cause till September 18th, 1845. On this last-mentioned day a decree was entered for $21,000 and costs by the written consent of Ryerson, stating that on a compromise had with the complainants he had agreed to withdraw his defence and consent to a decree for that amount, with interest from September 6th, 1845; this written consent being signed July 26th, 1845.
    At this point of time, according to the petition of Ryerson, on which the motion is made, the following facts occurred. The petition, after stating that the lands covered by the'said mortgage. amount, in extent, to 4500 acres,and that there are on the premises a forge, grist mili, saw mill, several farm houses and dwelling houses for workingmen j and that he had commenced building a furnace on the premises or on a part thereof; and that it was very important for him to finish the furnace and commence making iron , sets forth that the bonds of the said “ The American Life and Eire Insurance and Trust Company ” became very much depreciated, and that he found he could buy them at 20 per cent, of their par value. That he, therefore, made an arrangement with Taiman, (one of the assignees of the company,) by which Taiman agreed to take the bonds of the company for £5000 sterling and $400 in cash, in payment of the said mortgage. That having made this arrangement, he, the petitioner, applied to the Greenwich Bank of Eew York for a loan of money. That the said Greenwich Bank then held a claim against the petitioner for over $8000 which had been always disputed by the petitioner as being upon a usurious consideration, and which had never, on that account, been presented, and which the said bank considered of little value, and which they had before that time, and then also, offered to the petitioner to settle for $1000. That when he applied to the said bank for a loan of money, as aforesaid, he stated to the bank his anxiety to get the furnace complete and in operation ; and that, as soon as he could do so, he would be in the receipt of money, and would repay them the money they would advance him, together with their said above-mentioned claim. That he, the petitioner, would not have agreed to pay the said claim except for the consideration stated in his petition, and which he considered as a bonus for the loan and in fact a usurious consideration for the same. That thereupon the said bank and the petitioner came to an agreement to the effect following: that the bank would loan the petitioner $12,000, and Christian E. Detmold should lend the petitioner $1500; sad that out of this money the petitioner, or the bank for him, should buy up the said bond and mortgage of the American Life and Eire Insurance and Trust Company as before agreed upon, and that $4000 of the money should be expended on the furnace which the petitioner had begun to build as aforesaid, to complete the same. That the petitioner being in very needy and embarrassed circumstances, and looking to the starting of his furnace to extricate himself, was obliged to submit to such terms as the said bank might impose. That the bank required — 1st. That a decree should be entered in the said suit in chancery, in favor of McCauley and Taiman, assignees of the American Life and Fire Insurance and Trust Company, on the 26th of July, 1845, for $21,000, besides costs; that they should assign the said decree to Christian E. Detmold; and that Detmold should assign it to Benj. F. Wheelwright, the president of the said bank, in trust for the said bank. 2d. That the petitioner should give his nine notes, for $1500 each, to said Detmold, payable in 6, 9, 12, 15, 18, 21, 24, 27 and 30 months from date, all to be dated Sept. 12th, 1845, with interest ; and that the last eight notes should be endorsed by Detmold to the bank. 3d. That the petitioner should confess a judgment in the Supreme Court of New York for $8487, with costs, the amount of the said disputed claim of the said bank against him; and that this amount should form a part of the $21,000, for which the said decree should be entered. 4th. That the petitioner should procure an assignment to the bank of a judgment for $3218.87, which A. P. Hopper had recovered against the petitioner in the Supreme Court of New Jersey, a part of which had been paid ; Hopper to have all the moneys to be raised on said judgment, but the bank to have the control of the judgment. 5th. That the petitioner should assign to Wheelwright a lease he had made to Stephen High ter of the said forge, at an annual rent of $500. 6th. That the petitioner shall assign to Wheelwright a right, which he had by the will of his lather, to dig any quantity of ore-from the Ringwood Great Furnace tract, for this furnace ; which tract or right was not embraced in said mortgage. That all this was done as agreed upon; and that the bank agreed not to issue execution in case the said notes should be paid, as by reference to the agreement, a copy of which is appended to the petition, will appear. That the petitioner has since expended the said $4000 on the furnace; and that he found that it was necessary to expend a still larger sum to complete it; and that beyond the said $4000 he has expended the further sum of $8000, making the sum of $12,000 actually expended on the said furnace, ■dam and property. That he has been delayed in finishing the said furnace — first, by the difficulty he has had, in his embarrassed circumstances, to raise the money to finish it; and, secondly, by the sickness which has prevailed among his workmen, twenty of them employed there having become unable to work, fourteen of whom he sent to the hospital in New York : and, thirdly, by the sickness of the petitioner. That he expects to get the furnace in operation in less than a month from the date of his petition; and has prepared rising 50,00c bushels of charcoal, and about 80> tons of iron ore, to carry on the furnace, which forms no part of the $12,000 expended on the freehold. The petitioner states that he believes that when the furnace shall go into operation, he can dear from the same, and the use of wood and ore, $850 a week. That the bank knew he was straining every nerve to get the furnace into operation, anti that lie was expending a very large sum of money on the property covered by their mortgage. That only two of the said notes are due and payable to the bank, amounting to $3(X'0. 'i'he petitioner states that the real consideration for the batik to make the said loan, was the obtaining the said decree for $21,000, and the securities before mentioned, which embraced the said unjust claim of $8487, by reason whereof the bank obtained security for $8487 beyond the amount loaned by it to the petitioner. That Wheelwright has caused the whole property to be advertised for sale under the said decree, on the 12th October, 1846, and has declared and threatened, and the petitioner says he has no doubt he intends to sell the whole, unless restrained, not only for the amount so loaned, but also for the said debt of $8487. The petition prays that the sale may be stayed for some reasonable time after the furnace shall go into operation, and until the petitioner shall have time to file his bill to open the said decree, or obtain such relief as the court shall direct, and for such further and other relief, &c.
    The agreement referred to in the petition bears date September 12th, 1845, and is au agreement between Peter M. Ryerson, of the first part, Christian E. Detmold, of the second part, and the Greenwich Bank, of the third part. It recites that a decree had been entered in the Court of Chancery of New Jersey, in certain causes lately pending in that court, on original bill and supplemental bill, between the American Life and Fire Insurance and Trust Company and McCaulay & Taiman, assignees, complainants, and the said Ryerson and others, defendants, for the foreclosure of a certain mortgage given by Ryerson ; by which decree the sum of $21,000 had been established as the amount due, besides costs; which decree had been assigned to Detmold, and by him had been assigned, by one instrument, bearing even date with the agreement, to Benj. F. Wheelwright, in trust, &c. The agreement further recites that Ryerson was Indebted to the bank in $8487, with the costs, on a certain judgment recovered against him by the bank, in the Supreme Court of New York, on the said 12th of September, 1845, (the date of the agreement.) It then recites that, as part of the agreement and of the consideration thereof, Detmold had paid to Ryerson $400^, and doth, by the said agreement, agree to pay to Ryerson the further sum of $4000, as the same may be required for completing the furnace on the property described in the said mortgage, to be expended by and under the directions of Detmold. It then recites that Ryerson had made and delivered to Detmold his nine several promissory notes for $1500 each, with interest, dated on the day of the date of the agreement, payable severally in 6, 9, 12, 15, 18, 21, 24, 27 and 30 months; the same being for part of the moneys due on the said decree. It then recites that the bank had loaned t® Detmold, on the last eight of the said notes, $12,000; that said eight notes have been endorsed by Detmold to the bank ; that a certain judgment against Ryerson, in the Supreme Court of New Jersey, had been assigned to the bank by one Andrew Hopper, by an assignment dated September 1st, 1845, for the purposes mentioned in the said assignment. And then the parties to the said agreement agree as follows: That is to say, Ryerson agrees to pay Wheelwright, trustee, $1500 of principal on said decree, with interest on the whole sum of $21,000, decreed to be paid thereby, in six months from the date of the agreement; and $1500 of principal, with all interest remaining due on the amount of said decree unpaid, at the expiration of every succeeding’ three months after the time fixed for the first payment ; and also, at the time of the last payment, $987, with interest and costs, on the said judgment of the bank against Ryerson; and in case such payments are made, the said Wheelwright, trustee, is not to proceed on the decree to a tale of the premises, and the bank is not to proceed on the said judgments, unless compelled by Hopper to proceed on his judgment. so assigned to the bank; and when the same is all paid off, the decree is to be assigned to Ryerson, the said first-mentioned judgment to be canceled, and the said last mentioned judgment to be re-assigned to Hopper. And iu case of default in making any of said payments, as above agreed, the parties are to be at liberty to proceed on the decree and judgments, without first having recourse to the personal property of Ryerson on the said last-mentioned judgment. The agreement then states that it is expressly understood that, out of the moneys received by the said Wheelwright, as aforesaid, the said nine notes are to be paid in their order, as they may respectively become due, and the balance to be appropriated towards the payment of the remaining $7500 of the decree, and the sum of $987 on the said judgment of the bank, with interest and costs; and the bank further agree not to proceed iu any manner on the said notes against Detmold, in case of default iu the payment or any of them, till Wheelwright trustee, shall have completely exhausted his iegal and equitable rights against the mortgaged premises, under the said decree; and the bank further agree with Detmold not to part with any of the said notes. And, in consideration of the premises and of the assignment of said decree by Detmold to Wheelwright, iu trust as aforesaid, and of $1 paid by Detmold to the bank, the bank acknowledges t(’.at half of the said judgment in Hew York against Ryerson Delongs to Detmold, and that he is to be paid the half of all sums collected or paid on if.
    On this petition aud copy of agreement annexed, an order was made, staying the sale till the further order of the court.
    The motion now is, that the order staying the sale be vacated.

      R. Van Arsdale and P. D. Vroom, for the motion,

      A. S. Pennington and B. Williamson, contra.

   The Chancellor.

It is manifest, from an examination of the agreement of the date of September 12th, 1845, between Ryerson, Detmold, and the Greenwich Bank, that the amount of the decree entered in the suit in this court, in favor of the American Life and Fire Insurance and Trust Compaiay against Ryerson, was not the basis of the said agreement between Ryerson, Detmold, and the Greenwich Bank. The agreement states that a decree had been entered in favor of the said company for.............................:............................$21,000

That the decree had been assigned to Detmold, and by him assigned to Wheelwright in trust, &c.; that the bank had, on the day of the date of the agreement, recovered a judgment in New York, against Ryerson, for ............................................... 8,487

These two sums amount to........................... $29,487

And yet the whole sum which, by the agreement, is to be paid by Ryerson, is.................................... 21,000

But, further, in addition to the amount of the decree.. 21,000

and the amount of the bank judgment.................. 8,487

the agreement says that Detmold has paid Ryerson... 4,000

and agrees to pay him the further sum of $4000, as the same may be required for completing the furnace, to be expended by and under the direction of Detmold ................................................... 4,000

These four sums amount to................................. 37,487

And yet the whole sum which, by the agreement, is to be paid by Ryerson, is.................................... 21,987

What, then, was the basis of the agreement? The $13,500, for which Ryerson gave his nine notes, bearing the same date with the agreement, and payable at different periods 13,500

and the amount of bank judgment......................... $8,487

make the exact sum of....................................... $21,987

the payment of which by Ryerson is provided for by the agreement, and on the payment of which the assigned decree is to be assigned to Ryerson, and the judgment of the bank to be canceled.

But, for what were Ryerson’s notes, for $13,500, given ? Were they given for or to secure the decree assigned to the bank ? Clearly not; for the agreement says that the bank loaned §12,000 (to Betmold) on the last eight of them Retinoid retained the first of them. It is clear, then, that Ryersou’s notes for $13,500 were given for money to be advanced on them. And that amount, with the amount of the bank judgment entered against Ryerson, amounts to the. $21,987, which, by the agreement, Ryerson is to pay.

But how much money did Ryerson get, or get the benefit of? Tiie agreement says that Betmold paid him.............. $4,000

and agrees to pay him (in the manner above stated).... 4,000

These sums, with the amount of the judgment........... 8,487

amount to.................................. ......... ............ $16,487

The amount to be paid by Ryerson, by the terms of the agreement, is.......... ...... ......... .. ... ........... $21,987

being $5500 more than the money he got, and was or is to get, and the amount of the judgment. For what was Ryerson to pay this additional $5500 ? The answer is plain. The decree in the case of the American Life and Eire Insurance and 'Trust Company v. Ryerson was to be arranged, and, instead of being canceled, was to be assigned to the bank, to secure the whole money advanced, and for which Ryerson’s notes for $13,500 were taken ; $8000 of wiiich was paid or to be paid to him, and the residue of which was to be paid for the said decree; and if $5500 was paid for the decree, then the amount paid or to be paid Ryerson, and the amount paid for the decree, amount to the $13,500 for which Ryerson gave his notes, and the decree was to be an additional security for the amount of the bank judgment and for the $13,500 for which Ryerson gave his notes ; this $13,500 also including the amount paid for the decree. To carry out this arrangement, Ryerson withdraws his answers filed in the suit in this court, of the American Life and Fire Insurance and Trust Company, against him, and consents that a decree be entered therein for $21,000. The amount required to buy the depreciated bonds of that company, to an amount sufficient to procure the assignment of. the decree, was then arranged by the bank, and the assignment of it obtained; the arrangement was completed, and the said tripartite agreement entered into. This agreement, when examined carefully, is itself, notwithstanding its involution, sufficient to satisfy us that the substance of the transaction is as above stated. But the petition of Ryerson, on which the order now sought to be vacated was made, states distinctly that such was that arrangement; and, for the purposes of this motion, must be taken as true.

Whether there was usury in this agreement, I do not now find it necessary to express an opinion. Indeed it caimot, from the facts before us, be certainly told, as it seems to me. We are not toid how much was paid to get the assignment of the decree. If $5500 was paid for the decree, and $8000 was paid to Ryerson, that would .make the $13,500 for which Ryerson’s notes were given. This would leave the question of usury in the agreement to rest on the fact, as stated in the agreement, that $4000 of the money was to be paid to Ryersou, as the same might be required for completing the furnace, to be expended by and under the direction of Detmold ; the notes drawing interest for the whole amount from their date. Whether there was usury in the bank judgment, we have no means of telling.

On the petition of Ryerson, so far as it rests on the allegations of usury, the order to stay the sale is not sustainable. The petition must be left, in that respect, to such other course as he may be advised to adopt. If, indeed, the property was manifestly indivisible, and the money was all due, and the party having the control of the decree (which, in the view I have taken, is to be regarded as only an additional security for the payment of the money,) was about-to sell the whole property to raise the whole money, and the usury was made manifest by the petition, a grave question would be presented. A party complainant in this court may have relief tp the extent of the usury, though it should be held that he was not entitled to have the securities entirely defeated j and the court might order a stay of sale till the amount of the usury could be ascertained. But I do not think it necessary to go farther into this part of the case. The property is manifestly divisible, and but a part of the money is due. The decree which has been assigned to the bank is but one of the securities for the money. The court should, in my judgment, act upon the principal agreement and allow the decree to be used only bo far and at such times as shall be necessary to enforce the performance of the principal agreement, and in the same way as if it had been asked to direct process of execution on that decree in view of the principal agreement The decree, as entered, was general, that the mortgaged premises be sold to raise and satisfy the whole §21,000, and that a Ji./a. issue for the sale of so much of the premises as would be sufficient to pay that sum. The officer to whom the fi. fa. was directed was not authorized by the decree to sell only enough to pay what was due under the terms of the agreement. When, therefore, he was about to sell the promises to pay the whole sum when only a small portion of it was due, Ilyerson’s only resort was an application to the court to stay the sale as proposed to be made. And I apprehend that the relief, which I think ought to be afforded on this part of the case, comes within the principle on which this court uniformly acts in ordering sales of mortgaged premises, it does not direct the whole to be sold when only one installment or portion is due, if a part of the premises can be sold to pay that installment. And, in this case, it seems to me it would be manifest iujustice to sell 4500 acres of land in various tracts, and farms aud dwelling houses, and a grist mill, saw mill, forge aud furnace, to pay the small portion of the money that has become due under the said agreement. In Campbell and others v. Macomb and others, 4 John. Ch. 61, 534, it appeared, by the master’s report, that there was due to the plaintiffs, as trustees of a charity school, on two bonds aud mortgages, §1575, for interest; that the principal was not yet due, but that the bonds had become forfeited at law by the non-payment of the interest; and that there was due to the complainant Campbell $27,499.98, on two judgments; and that the mortgaged premises were manifestly indivisible and could not be sold in parcels. On this report, a decree was entered that the mortgaged premises, being a stone dam and bridge, be sold, and the proceeds be applied to pay the interest due, and then the principal of the bonds and mortgages, though not due, and the residue towards paying Campbell’s judgments. Before the day of sale, the owner of the equity of redemption paid all the arrears of interest and the costs, and thereupon applied to the court for an order staying the sale, and it was granted. A petition was then presented on the part of Campbell, stating that he was personally bound as collateral security for the payment of the two bonds and mortgages; that he held two judgments against the mortgagor, for moneys advanced and for his indemnity as such security; that the obligor and mortgagor was insolvent; that the security for the principal of the mortgage debts was much impaired, the dam having been much injured by a storm, since the filing of the bill, and prayed that the mortgagor or the owner of the equity of redemption be ordered to give security to repair the dam, or pay the mortgage debt, or that the order staying the sale be vacated. In opposition to this motion, an affidavit was read, that the present owner of the equity of redemption was rebuilding the dam, and would probably finish it in two months. The Chancellor denied the motion. He said that when the premises are indivisible the whole may be sold, and the proceeds applied to pay not only the portion due but also the residue of the debt, though not due; but that this arises from the necessity of the case; and that more than is due is not to be raised out of the mortgaged premises when that necessity does not exist. It is obvious that where a part of the premises can be sold to pay what is due, the necessity of selling the whole does not exist. In that case, the Chancellor said that though there was a regular decree for the sale of the whole premises, yet there could be no doubt of the power of the court, in its discretion, to regulate the process of execution under the decree. In that case, the necessity for the sale of the whole existed at the time of the decree; for the property was indivisible; but the Chancellor said that necessity was avoided before the sale, by the voluntary payment of what was due; and that ail that the party could in conscience require was, that the decree might remain as a security for subsequent defaults, and afford him an easy and prompt remedy when they occur. He referred to the case of Judd v. Evans, 6 Term Rep. 399, showing that a court of law, after judgment and execution for the entire debt, will relieve the defendant, on his paying the installment due, retaining the judgment as a security for future installments.

in the case before us, it cannot be that there is any necessity for selling the whole of the premises to raise the amount that has become due under the agreement; and the time stipulated for the agreement may have been, and probably was, a most essential consideration with the petitioner.

The motion to vacate the order staying the sale is denied. This I suppose to be all that I am called upon to say at present, ihe party holding the decree may desire to answer the petition, or take some course to controvert the facts stated in it, and; thereupon, move again to vacate the order.

Motion denied.


source: Caselaw Access Project

license: Public Domain

text:
    CAROLINE LEWIS v. WILLIAM LEWIS.
    1. What is not a desertion, under the act concerning divorces.
    2. A wife cannot convert a husband’s not contributing to the support of the family into a desertion on his part, by removing to another place and taking board and refusing to receive him.
    The petitioner .states that the marriage between her and the defendant took place in London, July 22d, 1834 ; that the petitioner resided in London at the time of the marriage. That shortly after the marriage her husband and she removed to Liverpool, where they lived about eleven months, when he left for America. That, about a year after, she followed him to America, and lived with him in New York for about four years; since which she has lived in Morristown, in this state, for nearly six years, without enjoying the society and support of her husband, though her removal to and residence at Morristown were in compliance with his wishes, and for the purpose of enabling her better to support herself and children by her own individual exertions, which her husband had wholly neglected to do. That she has four children, the eldest nearly eleven, and the youngest nearly six. That since the year 1837, she has been compelled, by her own exertions, to support herself and children. The ground on which a divorce is asked is, continued wilful and obstinate desertion for upwards of five years — i. e., since February, 1841.
    Mary Barrett testifies that she went to live with the parties, as nurse, in New York, about ten years ago. That for some time after she commenced living with them, the defendant made some provision for the support of the family, but that for some years before she left New York for Morristown, with the petitioner, he ceased to make any provision for the family. That during this time, he was idling away his time and showed no concern about providing for his family. He was roving around ; ■she does not know what he was about. That he was no advantage to the family, but a great annoyance to them. That he lived in this way three or four years before petitioner moved to Morristown. The design in moving to Morristown was to be able better to support herself and children, by teaching mosic. Since the petitioner has lived in Morristown, the defendant lias not lived in Morristown, or made any provision for the support of the family, but has lived a roving, vagabond life, traveling about, south and west. His habits were apparently slothful. The petitioner moved to Morristown in February, 1841, since which time the defendant has made no provision whatever for Ms family. He deserted his house and roved about the country. He was generally slovenly in his personal appearance, and showed evidence of his being idle. During all the time petitioner has lived in Morristown, and for some years previous, she has wholly provided for herself and children; having received no assistance from her husband; having provided a place of living for herself and children, and lived separate from her husband. That she, the witness, has lived with the petitioner for the last ion years, up to April, 1846.
    John I. Cooper testifies that he has known the petitioner ñve years, since February, 1841. She came from Hew York to Morristown to reside, at that time, and made an agreement with witness to board with him, with her nurse and four children. She continued with him three years and better. He took it that she supported herself. He never received anything for her board except from herself. She appeared to support herself by teaching music. Ho provision, that he knows of, was made for her by her husband. From what he knows of him and his habits, witness don’t think he was in a situation to aid her. Witness never knew him to be in any business, lie was here at Morristown, at different times, a year apart. The last time witness saw him here, he said he had been off to Georgia and Cincinnati. During the whole time petitioner has lived here, up to this day, she has Jived in the condition of a woman unprovided for and deserted by her husband.
    J. W. Miller, Esq., of Morristown,
    testifies to the irreproachable character of the petitioner. That since she came to Morristown, she has supported herself and family by teaching music. That her husband, during the time she has lived in Morristown, has, to witness’ knowledge and belief, furnished her with no means of support. Witness has seen him here several times, since the petitioner lived here. His only object in coming here, as witness learned from him and petitioner, waste get money from her, which she had earned by her exertions. From what witness knows of petitioner’s husband and has seen of him, and from the reputatiou he bears, witness considers him as an idle, worthless man, pursuing no regular business, leading a wandering life, and that the petitioner’s connection with him is a great detriment to herself and children. That during the whole time the petitioner has resided in Morristown, she has lived in the condition of a woman unprovided for and deserted by her husband. Witness believes that the petitioner’s comfort and happiness, and the welfare and education of her children, would be greatly promoted by being divorced from her husband.
    Ann E. Lery, a sister of the petitioner,
    testifies that she was present at the marriage; that it took place in London, in July, 1834. That witness came to America four years ago, and, shortly after her arrival, met the defendant in the street, in New York, when he immediately asked her for some money, though appearing in perfect health and able to support himself. When witness inquired of him why he deserted his wife and children and made no provision for their support, and reminded him of his good circumstances and business when they were married, he replied that he never intended to support them ; that he meant, at the time of the marriage, to have his wife make a living for himself and family by teaching music. That this conversation has been repeated since. From these conversations, witness learned that the defendant had made no provision whatever for his family during the whole time he had been in America, as well as from the statements of her sister the petitioner. When witness, arrived in America, the petitioner was living in Morristown, teaching music for the support of herself and children; the defendant was not living with his wife, and witness understood from him that he had not so lived for two or three years before. When witness met and conversed with defendant, as above stated, on her arrival in America, it was in the city of New York, where the defendant said he lived apart from his wife, saying that he had not lived with her for a long time. Witness has frequently visited Morris-town and stayed with her said sister; that the defendant has wholly deserted and failed to make any provision for her and her children. The defendant would sometimes attempt to extort money from his wife, and collect her bills, and take away her property, and did so a number of times, greatly harassing his wife, and often writing abusive letters to her; but he never sent any means of support to his wife and children, but left them wholly to be provided for by his wife. That defendant is entirely indolent in his habits, and leads a roving, vagabond life, spending his time in the south or west; and, from information witness has received, he is now roving in Ohio and Kentucky, following a theatrical company. Witness regards him as having wholly deserted his wife, and that he will never hereafter live with her and make provision for the support of her and her children.
   The Chancellor.

The evidence in this case, though entirely ex parte, does not, as it seems to me, make out a case of desertion, within either the letter or spirit of our statute. Desertion, to be a cause of divorce, must be a willful, continued and obstinate desertion for five years. In this case, the parties were married in London, in July, 1834. Shortly after their marriage, they removed to Liverpool, where they lived about eleven months, when the husband came to America. In about a year the petitioner came to this country, and they lived together in the city of New York, till February, 1841. The petitioner states that, for the first year after she came to this country, he contributed partially to the support of the family, out of funds then in his hands; but that, since the year 1837, she has been compelled by her own exertions to support herself and children, he having never done any business since he arrived in America. The petitioner states that her removal to Morristown and residence there were in compliance with his wishes, and for the purpose of enabling hei better to support herself and children by her own exertions. It is not shown, either by the petition or proofs, whether he went with her when she went to Morristown. The witness Cooper states that she carne to Morristown in February, 1841, and made an agreement with him to board with him, with her nurse and four children. Whether he went with her or not, when she first went to Morristown, it is clear that her going there with his consent and for the purpose stated, was not a desertion on his part. She had supported herself and him and the children, for some time before she left New York; and she went to Morristown to obtain a better support, the petition says, in compliance with his wishes.

Was it understood between them that he was to go to Morris- ' town too, or was it agreed between them that he was to remain in New York, or go elsewhere, and support himself? Was he to visit her at Morristown, or did she forbid his visiting her there ? There is nothing to show that there was anything like desertion on his part when she left New York for Morristown. Has anything since occurred amounting to a desertion on his part ? The testimony shows he has been at Morristown several times since she went there; and it does not tell us whether she received him, or refused to receive him, because he was in no business, or was idle, and contributed nothing to her support or that of the children. Was that a desertion on his part ? The same kind of desertion had taken place before she left New York ; for he had not contributed to the support of the family for some time before that. A wife cannot convert a husband’s not contributing to the support of a family into a desertion on his part, by removing to another place and taking board and refusing to receive him there. The case seems to be nothing .more nor less than an application by the wife for a divorce on ¿he ground that the husband is idle, and contributes nothing to her support or that of the children, and that she is obliged to support herself and them, and is unwilling that her earnings should support him.

It seems to me it would be a dangerous precedent to decree a divorce in this case. The prayer of the petitioner is therefore •denied.


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    DAVID BRAY v. MARY ANN BRAY.
    1. Alimony allowed the wife pending a suit by the husband for a divorce for alleged adultery, on the denial by the wife, under oath, of the adultery.
    2. The answer of the wife should be put in without oath, and the denial ;;£ the adultery should be introduced in the petition for alimony, and the petition be under oath.
   The Chancellor.

The bill in this case is filed by the husband for a divorce, on the charge of adultery. The wife has put in an answer denying the adultery, and has filed her petition for alimony during the suit, and íbr a reasonable allowance for counsel fees and expenses, to enable her to defend the suit. The answer and petition are both under oath. Our statute provides that answers to bills for divorce shall not be under oath. But on application by the wile for alimony pendente lite, and an allowance to enable her to defend the suit, when the bill is filed by the husband and charges adultery, the oath of the wife, denying the charge of adultery, seems to be required to entitle her to alimony and allowance. I think the correct practice would be o file the answer without oath, and to introduce into the petition for alimony a distinct denial of the adultery, and swear to the petition. I shall consider the adultery as sufficiently denied in this case.

The defendant is entitled to alimony pendente lite, and to a reasonable allowance to enable her to defend the suit. 2 Paige 109 ; 3 Johns. Ch. 519 ; 1 Paige 83 ; 2 Ib. 621.

The court sometimes fixes the alimony without a reference, where affidavits on both sides have been presented for the purpose of enabling the court to fix the amount. It has not been done in this ease, and there must, therefore, be a reference.

Order accordingly.

Cited in Marker v. Marker, 3 Stockt. 258.


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    VANDEN BYLANDT v. VANDEN BYLANDT.
    1. The affidavit on which the application for a ne exeat wag made in » divorce case, was made before the petition for divorce was filed.
    2. Ne exeat denied. The proper course stated.
    On petition for divorce from bed and board, for cruel treatment, and stating that the husband designs quickly to leave the state without making any provision for the support of the petitioner, and praying a ne exeat. The usual affidavit on petitions for divorce is subjoined to the petition, and was made November 12th, -1846. Annexed to the petition is an affidavit of one Romein, showing the intention of the husband to leave the state and abandon the petitioner. His affidavit is also made November 12th, 1846. The petition had not been filed on the same day.

      G. S. Van Wagener, for the petitioner, moved for a ne exeat.

   The Chancellor.

It would be irregular to grant the ne exeat under these circumstances. There was no cause or proceeding in court respecting the subject of the affidavit made by Romein when it was made. 1 Beat. 327.

The proper course is to file the bill or petition for divorce, and after that to file a petition for the ne exeat, supported by the necessary affidavit, sworn subsequently to the filing of th© bill.

Motion denied.


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    VAN SICKLE v. AYRES.
    If, when a payment is made by one to another to whom he is indebted on bond and mortgage, and on other accounts, the debtor makes no special appropriation of the payment to the bond and mortgage, the creditor may apply it to the other account.
    The bill in this ease is for the foreclosure of a mortgage, dated June 17th, 1843, given by the defendant to the complainant, for $1000, payable April 1st, 1844, with interest. The answer admits the giving the bond and mortgage, and sets up that on or about January 25th, 1845, he gave the complainant an order on Jonas Roloson, for about $19.44, on which the complainant received the money ; and that it was understood between him and the complainant, when the order was given, that the said sum was to be applied by the complainant as a payment on the said bond and mortgage. That on or about April 2d, 1845, he sold and delivered to the complainant 10 sheep, for $22.50, which was to be applied by the complainant- as a payment ou the bond aud mortgage. That on or about April 14th, 1845, he, at the request of the complainant, assumed and paid for him to Britton Ayres about $21.38, which the complainant promised to apply as a payment on the bond and mortgage. That on or about March 29th, 1845, he, at the request of the complainant, gave the complainant his, the defendants’ note, for about $60, which was given by the defendant and received by the complainant to be applied as a payment on the bond and mortgage; and that after-wards he, the defendant, paid the note. And he says he was informed by' the complainant, and believes it to be true, and therefore charges, that the said note was afterwards transferred .and delivered by the complainant to Azariah Lewis, in payment for a wagon bought by the complainant of Lewis. That on or about May 15th, 1845, he, at the request of complainant, assumed and paid for him to Henry Fountain about $25, which the complainant promised to apply as a payment on the bond aud mortgage. That the complainant is indebted to him $3 forgateuge, for the passage through a gate belonging to the defendant, on the Paterson and Hamburgh turnpike, from April 1st, 1842, to April 1st, 1845.
    The defendant exhibited interrogatories to the complainant, inquiring as to the several matters set up as payments, and whether it was not the understanding between them that the several items should be applied by the complainant as payments on the bond and mortgage. The complainant admits the receipt of the several amounts as stated in the answer, except that the sum which he requested the defendant to pay to Britton Ayres for him was but $20, instead of $21.20, as stated in the answer ; and except his gateage, which he denies owing to the defendant; but the complainant answers to the interrogatories, that the said several payments were made by the defendant to be applied on other unsettled accounts which the complainant had against him ; and that it was so understood between them, when the payments, respectively, were made; and that neither of them was directed by the defendant, or received by the complainant, to be applied as' payments on the bond and mortgage. No testimony was produced on the part of the defendant.
    The case was submitted without argument.
   The Chancellor.

If, at the time of the making of the several payments claimed by the defendant to have been made, he was indebted to the complainant on other accounts, there being no proof that the defendant made any special appropriation of the payments to the bond, the complainant had the option to appropriate them towards the payment of his other account against the defendant.

Let it be referred to a master, to inquire and report whether, at the time of the several payments, the defendant was indebted to the complainant on other accounts; and whether the payments made by the defendant are more or less than sufficient to pay such other indebtedness ; and to ascertain what is due the complainant on the bond and mortgage, after crediting thereon thesurplus, if any, which shall be found to remain of the payments, after discharging such other indebtedness; the defendant to be permitted to make any other proof of the said payments-which he may think necessary.

Order accordingly.


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    WILLIAM WINTERS v. PETER D. HENDERSON ET AL.
    1. When a mortgagor, after giving the mortgage, sells to a third person a part of the mortgaged premises, the part remaining in the mortgagor should, in a decree for sale, be directed to be sold first.

      ‘¿. On a foreclosure bill in such a case, a decree was taken in the general form for the sale of so much of the mortgaged premises as would be sufficient ‘o pay the debt, and a fi.fa. was issued to the sheriff, commanding him, in the terms of the decree, to make sale.
    3. On the petition of one of the defendants, a purchaser from the mortgagor of a part of the premises, and the facts therein stated, an injunction was allowed, restraining the sheriff from selling the part which had been conveyed to this defendant until the further order of the qourt; and it was subsequently directed that the part remaining in the mortgagor should be first sold.
    On the 3d December, 1824, John Winters gave to Joanna J. bhawger a mortgage on four lots separately described in the mortgage. On the 8th August, 1827, the mortgage was assigned by the mortgagee to William Winters, the complainant. On the same 8th August, 1827, the tract first described in the mortgage was conveyed to Peter D. Henderson. On the 24th September, 1830, the administrator of the mortgagor conveyed the three other tracts described in the mortgage to J. J. Shawger, the original mortgagee, who had previously assigned the mortgage as aforesaid. John Smith and Richard li. Smith are in possession of the said three tracts, claiming title under deeds from J. J. Shawger and the heirs-at-law of the mortgagor.
    The bill was filed June 19th, 1845, by William Winters, for the foreclosure of the mortgage and sale of the mortgaged premises, against Henderson and his wife, and the Smiths and their wives.
    The Smiths filed a demurrer to the bill, Henderson and wife fid led to appear, and a decree pro eon. was entered against him on the 18th September, 1845. The demurrer of the Smiths was overruled December 16th, 1845. They neglected to answer ; and in March, 1846, without any order of reference to a master, for the purpose of getting a report iiow the property should be sold, a final decree was taken against all the defendants, in the general form, for the sale of so much of the mortgaged premises mentioned in the bill as would be sufficient to satisfy the mortgage; and a ji. fa. was issued to the sheriff, commanding him to make sale.
    On the 29th August, 1846, Henderson filed his petition, stating that, immediately after the service of the subpoena on him, he, being ignorant of the character of the process and of his duty under it, and believing it to be necessary for him personally to appear at Trenton, to answer the command thereof, and residing in a thinly-settled part of the county of Morris, made preparations to go to Trenton, according to the command of the process. That on his way to Trenton, passing through the village of Roekaway, in Morris county, he applied to L. A. Chandler, Esq., a solicitor of this court, and showed him the copy of the subpoena, and told him he was on his way to Trenton to answer the same. That he had been in the habit of advising with said Chandler in legal matters, and relied on him for such directions as were necessary to defend the suit. That Chandler told him it was unnecessary for him to go to Trenton at all to answer the subpoena. That relying on this information, and being unacquainted with proceedings in chancery, and unable to read or write, and being ignorant of any such mortgage, he desisted from going to Trenton, and went home, and laid the subpoena by, believing it was unnecessary for him to take any steps to answer it; and that, if it was necessary for anything to be done by him, the said Chandler would inform him. That he frequently saw Chandler afterwards, but that he did not, nor did any other person inform the petitioner that it was necessary for him to defend the suit in any way; nor did he know, suppose or believe it was necessary to do so till after he heard that the land was advertised for sale by the sheriff. The petitioner then states, that the sealed bill, to secure which the mortgage was given, was paid by John Winters, in his lifetime, to J. J. Shawger, in her lifetime, before the mortgage was assigned to William Winters; and that the sealed bill remained in the possession of one John Hardy, administrator, &e., of J. J. Shawger, till a very short time before the bill was filed, and was never assigned by the said Hardy to the complainant. The petition then states the proceedings had in the cause; that under the Ji. fa. the sheriff had advertised all the lands mentioned in the bill for sale on the 31st August,’ 1846, and when applied to by the solicitor of the petitioner, said he expected to sell the land so conveyed to the petitioner, as set out in the bill, first, to raise and satisfy the amount due on the said execution ; that when he, the petitioner, purchased the said first-described tract, on the 8th August, 1827, $200, the consideration mentioned in his deed from the said John Winters and his wife, the mortgagors, was a full and fair price for the said first-described tract; and that the said John Winters and wife conveyed the same to him in fee simple; Winters warranting in the deed that it was free from encumbrance, and that be would warrant the same to the petitioner against all persons whatever, free from all manner of encumbrance; and that the said deed to the petitioner was recorded July 1st, 1828. The petition states that the proceedings and decrees in the said foreclosure suit were a surprise upon him ; and insists that the final decree is irregular, inasmuch as it appears, by the complainant’s bill, that the conveyance of the three last-mentioned tracts was subsequent to the conveyance of the first tract to the petitioner, and that said three tracts are liable to be first sold to pay the mortgage; that he gave a note with security for the $200, the consideration for the tract bought by him, which note was after-wards paid, under the firm belief that the tract so bought by him was free from all encumbrance.
    The petitioner prays that the decree may be set aside or opened, and the petitioner be permitted to answer the bill, or that a reference may be ordered, to ascertain the priority of the conveyances, and whether the mortgaged premises can be sold in parcels, and that the decree may be so amended as to order ihe parts of the mortgaged premises not belonging to the petitioners to be first sold. The petition was sworn to in the usual form, the petitioner subscribing it by his mark.
    A copy of this petition, and of a notice of the motion to the court, were served on the solicitor of the complainant and on the solicitor of the Smiths.
    On reading the foregoing petition, and a further petition stating the service of a copy thereof, and of the said notice as aforesaid, and that the complainant’s solicitor and the sheriff threatened, notwithstanding, to proceed to sell the lands of the petitioner, and praying an order staying the sale till the further order of the court, an order was made staying the sale.

      P. D. Vroom moved to open the decree, and cited 7 Paige 609.

      JS. W. Whelpley, on behalf of the complainant, cited 2 Green Ch. B. 461.
    He read an affidavit made by Richard R. Smith, stating that, before the time for answering had expired, he, for himself anti wife, and in behalf and by authority of John Smith and wife, in order to save the costs of putting in an answer, as they otherwise would have done and intended to do in case the arrangement had not been made, arranged and agreed with the complainant’s solicitor, that no answer should be put in by the Smiths, provided that part of the mortgaged premises which was in Henderson’s possession should be first sold, which arrangement was entered into between him'and the complainant’s solicitor; that, at the lime of the said arrangement, he believed that those parts of the premises claimed by and then in the possession of the Smiths were not liable to the payment of the mortgage debt, by reason of the said mortgage having been paid off; and considered and believed that if Henderson did not and would not resist the suit, the part of the premises claimed by him, and in his possession, ought to be first sold, and would be sufficient to pay the decree and costs; that if the decree be opened, he believes that they, the Smiths, can satisfy the court that the mortgage had been paid off long before the filing of the bill; that if the Smiths should, unexpectedly, fail in the making such proof, the deponent verily believes that, on a reference to a master as to priorities, the said Smiths can establish by proof that, as between them and Henderson, the part in Henderson’s possession should be first sold to pay the mortgage.
    Mr. Whelpley said that he made no bargain or arrangement’ with the Smiths; that their solicitor said to him that Henderson had agre'ed to pay the mortgage, and that the jumper course was to sell Henderson’s part first. The contest was between the defendants, and he, Mr. W., was not bound to settle the difference between them. All Henderson is entitled to is to have it referred to a master, to report how the property should be sold. If he is not right in this, yet the court should not open the decree except on payment of costs ; and Henderson should be confined to the case he makes by his petition, that is, that the mortgage has been paid off. He should not have leave to make any other defence.

      Mr. Vroom replied.
   The Chancellor.

If the debt secured by this mortgage is still subsisting, the lands last conveyed are liable to be first sold to pay it. So far, then, as relates to this mortgage debt, and the estate of the mortgagor, and the rights of Henderson as against that estate, the administrator of the mortgagor could only sell the three tracts, subject to the whole mortgage. These three tracts were in the hands of the purchaser from the mortgagor’s administrator, subject to the same equity in favor of Henderson that they were subject to in the hands of the mortgagor. I think Henderson is entitled to relief. Without putting the action of the court on his ignorance, but charging him with full knowledge of the mode of proceeding in a foreclosure suit, and allowing him full knowledge of his equities, as we must also do, lie had just grounds for relying that such course would be taken as to subject the three tracts last conveyed to be first sold; and it appears to me that on the facts stated in the bill and the decree as it stands, it would have been proper for the complainant's solicitor to direct the sheriff to sell those three tracts first. But it seems the Smiths now-make difficulty; and Henderson seems to have just ground to apprehend that his tract may be sold first. The question is as to the mode in which relief can be extended to Henderson. I say to Henderson, for I see no principle on which any relief can be extended to the Smiths. Indeed they have asked none. But if they had, the only relief they could have asked would have been the opening of the decree, and permitting them to answer and set up that the debt was paid. On what ground could they ask the court to open the decree ? They appeared and demurred to the bill, and after their demurrer was overruled failed to answer. Nay, they say they intended to answer, and would have done so and have set up that the mortgage was paid, if they had not thought they had made an arrangement with the complainant’s solicitor, .that Henderson’s tract should be sold first. Now the only defence that would have answered their purpose would have been that the mortgage had been paid ; and if they had so little confidence in that defence, or so little regard for the rights of Henderson, as, instead of answering, to take their chance of inducing the sheriff, or the complainant’s solicitor, to sell Henderson’s tract first, I do not see that the court ought, or that it can, on any recognized principle in regard to opening decrees, open this decree in their favor. I do not see that, at present, there is any need of inflicting, on either of the parties the expense of opening the decree, or of a reference. The bill states the facts sufficiently, and, as against the Smiths, it should stand as confessed. I see no objection to making an order on the sheriff to sell the three tracts last conveyed, first. There can be no doubt they will bring enough to pay the debt. If they should not, the matter may be again agitated, and the court will decide whether the decree shall be opened to let Henderson in to defend. If it be said, on the part of the Smiths, that the court should not interfere at all, unless it opens the decree and gives them an opportunity to defend, I do not think they stand in a position to ask that of the court.

Order accordingly.

Cited in Weatherby v. Slack, 1 C. E. Gr. 493.


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    THE NEW YORK CHEMICAL MANUFACTURING COMPANY v. AARON PECK ET AL.
    1. A bona fide assignee of a mortgage first in execution and registry, without notice of an agreement under seal between the first and second mortgagees that the second mortgage shall be considered and held to be the prior encumbran ee, no charge being made in the registry of the mortgages, has an equity superior to that of the second mortgage under such an agreement.
    2. The language of an answer scrutinized.
    The bill in this case, filed January 18th, 1843, is for the foreclosure of a mortgage, dated March 18th, 1830, given by A. Peck ro Samuel Condit, to secure the payment of a promissory note, of the same date, given by Peck to Condit, payable on demand, for $1500, with interest. The bill states that on the 20th September, 1842, Condit, by an assignment endorsed on the mortgage, for a valuable consideration to him paid by the complainants, assigned to them the mortgage and the note referred to therein. That the complainants have heard and believe it to be true, that Peck, on or about May 1st, 1830, executed another mortgage on the said property and other property, to Samuel Dodd, to secure $2400; that Dodd had since died intestate, and administration of his personal estate has been granted to Caleb Baldwin and Jemima Dodd. That Peck, on or about February 15th, 1831, sold and conveyed the said property to William Peck and Elijah C. Pierson, who now own it. That on the 14th April, 1840, John Taylor recovered a judgment in the Circuit Court of Passaic, against A. Peck, C. R. Akers, Elijah O. Pierson, Samuel Condit and William Peck for $111.94, and on the 20th October, 1840, another judgment in the said court, against the same persons, for $2500.48. That on the 20th October, 1840, Jonas Smith recovered a judgment in the said court against A. Peck, William Pock, Lewis Dodd and Samuel Condit, survivors of Samuel M. Dodd, for $794.53. That on the 27th October, 1841, Isaac Baldwin recovered a judgment in said court, against William Peck, Elijah C. Pierson and Samuel Condit, for $1686.78. That the board of chosen freeholders of the county of Essex had a verdict or recovered a judgment against the said A. Peck, William Peck, Samuel Condit and others, in the Circuit Court of Essex, in 1841, for $5773.51, lies ides costs. That Mann & Hendrick recovered a judgment against the said William Peck, in the said court, on the 9th November, 1842, for $232.45. That on the 9th November, 1841, James Manell recovered a judgment, in the Supreme Court, against William Peck, Elijah C. Pierson and Samuel Condit, for $510.50, besides costs. That on the same day, Elias Tomkins recovered a judgment, in the same court, against the same persons, for $413.28, besides costs. That on the 22d February, 1842, Jonas Smith recovered a judgment in the same court, against A. Peck, William Peck, Lewis Dodd and Samuel Condit, survivors of Samuel M. Dodd, for $761.83. That on the same day, John Taylor recovered a judgment, in the same court, against A. Peck, C. E. Akers, Elijah C. Pierson, Samuel Condit and William Peck, for $1976.64, besides costs. That on the 10th May, 1842, Isaac Baldwin recovered a judgment in the same court, against William Peck, Elijah C. Pierson and Samuel Condit, for $1652.19, besides costs. The bill charges that the said Samuel Dodd, E. C. Pierson, William Peck and the said several judgment creditors, had notice of the complainant's mortgage, and that they, severally, took their mortgage, deed and judgments subject to the mortgage of the complainants; and that they knew it was unsatisfied. That, before filing this bill, the complainants have called On the said A. Peck, and ■demanded payment of the said note, and he refused to pay the same; and that the complainants are informed and believe that lie is insolvent and uuable to pay his debts.
    The administrators of Samuel M. Dodd, deceased, (in the bill called Samuel Dodd,) put in an answer to the bill, admitting the indebtedness of A. Peck to Samuel Condit, and the giving •of the note and mortgage, and the record of the mortgage, and the assignment, for a valuable consideration, of the note and mortgage by Samuel Coudit to the complainants, aud the record of the assignment; and stating that on the 1st of April, 1830, A. Peck, being indebted to Samuel M. Dodd, since déeeased, in $2400, made his note, of that date, for the said sum, payable ■to the-said Samuel M. Dodd, or order, on d’emand, with interest; and that on the 1st of May, 1830, to secure the said note, the ¿aid A. Pock executed and delivered to the said Dodd his mortgage, of the last-mentioned date, on certain lands therein described, (describing them,) which mortgage was acknowledged on the loth and recorded on the 18th of September, 1830, at 5 minutes Mfcur í P. M. That the lot first mentioned in this mortgage is ¡.lie same laud and premises described in the mortgage set out in she complainants’ bill. That Samuel M. Dodd died October 24’h, 1831, intestate; that on the 20th ^November, 1831, administration of his personal estate was granted to these defendants, and that the said note and mortgage to the said Samuel M. Dodd víame into the possession of such administrators. They admit Rial A. Peck, on or about February 15th, 18-11, sold and conveyed to William Peck and Elijah C. Pierson the said land and premises described in the mortgage set out in the complainants’ bill, and first described in the said mortgage to Samuel M. Dodd; and that said William Peck and Elijah C. Pierson were the owners of the same at the time of the filing of the complainants’ bill. That on or about August 26th, 1836, while the said Samuel Condit was the holder of the mortgage so given by A. Peck to him, these defendants released the lot secondly described in the said mortgage to Samuel M. Dodd to the owners thereof, according to law, from the operation and lien of the said mortgage held by the defendants; and that the said release was made with the knowledge, approbation and consent: •of the said A. Peck and the said Samuel Condit. That after-wards, on the said August 26th, 1836, the said Samuel Condit ¿¡ill being the holder of the said note and mortgage given by A. Reck to him, and these defendants being still the holders of the -aid note and mortgage given to their said intestate, the said Samuel Condit made and entered into an agreement in writing, under his hand and seal, to and with these defendants, of the date last mentioned, whereby he stipulated and agreed for the consideration therein expressed and referred to, to and with these defendants, that the said Samuel M. Dodd mortgage should be considered and held as the first lieu on the lot described in the mortgage from ■ Peck to Condit, notwithstanding the prior date and execution Á the said mortgage from Peek to the said Condit; which said agreement, with its recitals, is of the following purport and effect, that is to say, (setting it out.) It recites the two mortgages, giving their dates; and states that he, the said Condit, has, for certain good causes and considerations, agreed to give priority to the mortgage to Dodd, and then, in consideration of the premises, and of $1 to him paid, consents, covenants and agrees to and with the said administrators, &c., of Samuel M. Dodd, that the Dodd mortgage shall be considered and held as the prior lien, &e. The answer then states that this agreement was made and entered into by Condit with a full knowledge that these defendants had made the release herein before mentioned, and of the effect and purport thereof; and with the full knowledge and approbation of the said A. Peck, William Peck and Elijah C. Pierson, at the time of the making thereof.
    By the consent of the solicitors of the respective parties, the affidavit of A. Peck, one of the defendants, was read on the hearing. He states that he was discharged as a bankrupt, March 31st, 1843. That the agreement of Samuel Condit, (being the agreement that the Dodd mortgage should be held aud considered the first lien on the premises described in the mortgage to Condit, and which was assigned to the complainants,) was made and delivered by him to the administrators, &c., of Dodd,.at the instance and request of William Peck and Elijah C. Pierson, to induce, and as a consideration to the said administrators to make and deliver the release to John Peck; John Peck being then the owner of the part released to him, and the said William Peck and Elijah C. Pierson being then the owuers of the residue of the mortgaged premises. That the making and delivering of the said agreement was the only inducement or consideration for the execution and delivery of the said deed of release; that the said agreement and deed of release were made, executed and delivered respectively, on or about the day they bear date, in good faith, aud for the consideration aforesaid, and with the full purpose and expectation of ail the parties thereto, as declared by them at the time, to give priority to the mortgage of the said administrators over that of the said Samuel Condit.
    John Q. Jones, sworn for the complainants, says he was cashier of the New York Chemical Manufacturing Company during the whole month of September, 1842, and for.some years previous; (hat the said company took the said note and mortgage, (the note and mortgage to Condit,) for a full and valuable consideration, as cash; they were taken by order of the board of directors of the said company; the whole of the negotiation and the purchase of assignment of said note and mortgage was made by him, the deponent, in behalf of the said company. That prior to and at the time of making the agreement for the purchase of said note and mortgage, it was represented to him, as cashier for the complainants, that the said mortgage was the first encumbrance on the properly described in it. He so represented it io the board of directors, and the board took it on that understanding. That the complainants would not have taken this mortgage but for the representations made to them that it was the first encumbrance. That the complainants first heard of the secret agreement made by Samuel Condit to give priority to the Dodd mortgage after the filing of the bill in this cause.

      A. S. Pennington, for the complainants,
    He cited 6 Cowen 147; John. Ch. Rep. 441, 479; 1 P. Wms. 497 ; 1 Eq. Cas. Ab. 321; 2 Vern. 726; 6 Ves. 192; 13 Ib. 132; 3 Russel 1 ; 2 Simons 75; 2 Vent. 337; 2 Dessau. 519; 1 Dow’s Rep. 50; Paw. on Mort. 295; Talbot 187; 1 Atk. 571 ; 7 Halst. 116; 2 Pick. 184; 4 Taunton 683; 6 Cranch 133 ; 1 Sumner’s Rep. 509; 2 Wash. Rep. 233, 255; 1 Munf. Rep. 533; 8 Cowen 260 ; Saxton 461; Story’s Com. on Eq. 372, 7, 9; 1 Fonbl. Eq. 206, 266 ; 19 East 66, 71.

      A. C. M. Pennington, for the defendants.
    He cited 2 Story’s Eq. 362; 3 Meriv. 86; 2 Vern. 692, 764; 1 Ves. 122; 1 Ves., Jr., 247 ; 4 Ib. 7, 12; 1 Harr. & John. 320; 3 Monroe 432; 1 Dallas 23 ; 2 Murphy’s Rep. 30; 1 Paige 319 ; 12 Wheat. 605; 6 Cond. U. S. Rep. 662; 3 lb. 554; 1 Wheat. 233; 9 Cowen 409 ; 5 Ib. 353; 2 Yeates 23 ; 2 John. Rep. 595; 1 Pen. Rep. 23; 6 Halst. 116.
   The Chancellor.

On the 18th March, 1830, Aaron Peck gave his note of that date to Samuel Condit, for $1500, payable on demand, with interest; and, to secure the payment of it, executed and delivered to Samuel Condit a mortgage, of the same date, op a tract of land in Orange. On ¡he 1st May, 1880, A. Peck executed and delivered to Samuel M. Dodd a mortgage to secure the paj’ment of a note given by Peck to Dodd, for $2400, payable to Peck or order, on demand, with interest. This second mortgage covered the tract contained in tiic first mortgage and another tract of land. On the 15th February, 1833, A. Peck conveyed both tracts to William Peck and Elijah C. Pierson ; and it would seem that William Peck and Elijah C. Pierson afterwards conveyed to John Peck the second tract mortgaged to Dodd, and which was not mortgaged to Condit. Samuel M. Dodd died in October, 1831, and administration of his personal estate was granted to Caleb Baldwin and Jemima Dodd. On the 26th August, 1836, the administrators of Samuel Dodd released the lot secondly described in their mortgage from the operation and lien of their mortgage. The answer of the administrators says that the release was made to the owners thereof according to law'; and that the release was made with the knowledge, approbation and consent of A. Peck and of Samuel M. Condit. Afterwards, on the said 26th August, 1836, (in the language substantially of the answer), the said Samuel Condit made and entered into an agreement in writing under his own hand and seal, to and with the defendants, of the date last mentioned, whereby he stipulated and agreed, for the considerations therein expressed and referred to, to and with the defendants, (the administrators), that the said Dodd mortgage should be considered and held as the first lien on the lot described in the mortgage to Condit, notwithstanding the prior date and execution of bis, Condit’s, mortgage. The answer says that this agreement was made and entered into by Condit with a full knowledge that the said defendants had made the said release, aud with the full knowledge and approbation of the said A. Peck, William Peck and Elijah C. Pierson. The agreement states the two mortgages, and that he, Condit, had agreed, for certaiu good causes aud considerations, to give priority to the Dodd mortgage; and then; in consideration of the premises and of $1, to him paid, consents, covenants and agrees to and with the said administrators of Samuel M. Dodd., deceased, that the Dodd .mortgage shall be considered and held to be the prior lien In April, J840, a judgment for §1114.91, and in October, 1840, another judgment for §2500, were recovered by John Taylor, both against A. Peek, C. IP Akers, Elijah C. Pierson, Samuel Condit and William Peek. On the 20th October, 1840, Jonas Smith recovered a. judgment against A. Peck, William Peck, Lewis Dodd and Samuel Condit, survivors of Samuel M. Dodd, for §794.53; and other judgments for large amounts were recovered, in 1841, against the said Peck, Pierson and Condit. In February, 1842, Jonas Smith recovered another judgment against A. Peck, William Peck and Lewis Dodd, deceased, for $761.83 ; and on the same day, John Taylor recovered a judgment against A. Peck, C. IP Akers, Elijah C. Pierson, Samuel Condit and William Peck, for §1976.64; and on the 10th May, 1842, Isaac Baldwin recovered a judgment against William Peck, Elijah C. Pierson anti Samuel Condit, for $1652.19. On the 20th September, 1842, Samuel Condit, by an assignment endorsed on the said mortgage given by A. Peck to him, stating his assignment to have been made for a valuable consideration to him paid by the complainants, assigned his said mortgage to the complainants and the note referred to therein. On the 15th February, 1843, the complainants, as assignees of the Condit mortgage, filed their bill for the foreclosure of that mortgage and the sale of the premises under it, as the prior encumbrance, making the administrators of Samuel M. Dodd parties defendant as subsequent mortgagees. These defendants set up the agreement of Condit before stated, that the Dodd mortgage should be considered the prior encumbrance.

There can be no doubt that if Condit had not assigned his mortgage, but had himself filed the bill for foreclosure, the court would have given effect to his agreement under seal, if produced by the administrators of Dodd; that the Dodd mortgage should be considered and held to be the first lien, whether that agreement was considered as only a covenant or as something more. Xor can there be any doubt that the assignee of a bond and mortgage takes them subject to all equities existing in favor of the mortgagor against the mortgage. But the question involved in this case is, whether when there are two mortgagees, one prior and the other subsequent, and the subsequent mortgagee takes from the prior mortgagee a writing under seal, that the subsequent mortgage shall be considered and'held to be the prior encumbrance, but no change is made in the registry of the mortgages, and the mortgagee whose mortgage is prior in date and registry afterwards assigns his mortgage to a bona fide assignee without notice of the agreement between the two mortgagees, the subsequent mortgage is to be considered the prior encumbrance as against such assignee. This is the statement of the question on the supposition that the subsequent mortgagee setting up the agreement and the assignee of the mortgage first in execution and registry are both innocent. On this question, I am strongly inclined to the opinion that the bona fide assignee of the mortgage first in execution and registry, without notice of the agreement between the mortgagees, has the better equity; and that the mortgage so assigned to him should be decreed to be, in his hands, the first encumbrance; and that the subsequent mortgagee should be left to his action against the first mortgagee for a breach of covenant. If such an agreement should be held to be equivalent to the actually putting the second mortgage first, notwithstanding the registry to the contrary, then the second mortgagee, by procuring such an agreement and permitting the registry to remain unchanged, puts it in the power of the first mortgagee, and is active in so putting it in his power, to inflict a loss on an innocent assignee of the first mortgage. No diligence on the part of any one about to takean assignmentof the first mortgage would protect him, or apprise him of danger. If he goes to the mortgagor to inquire of him if he has any equities against the mortgage, he is answered No, and that the money is all due. If he goes to the records, he finds that the mortgage he is about to take is the first encumbrance. These are the only sources of inquiry to which he can apply. The information he receives is satisfactory, and he takes the mortgage. When he comes to foreclose his mortgage, if the second mortgagee produces an agreement between him and the first, that the second mortgage shall be considered and held to be the first, I think the assignee could truly and justly answer that that did not make it the first; that the first mortgagee still kept it in its place as the first, in breach of his agreement, and that he, the second mortgagee,, most resort to his remedy on the agreement. Indeed, I do not see that, unless there be a change in the registry, there could be anything but a covenant between the two mortgagees. The recording of such an agreement would not have the effect of putting the second mortgage first as against third persons. What could lead a third person, searching for mortgages against a mortgagor and the priorities of them, to look for an agreement between the mortgagees inverting the order of registry? There has been no effort on the part of the defendants to question the bonafides of the assignment to the complainants, or their want of notice. It seems, on the contrary, to be admitted by the answer. Under these circumstances, and supposing the defendants to be equally innocent in other respects, the loss, I think, should fail, (if any is to be sustained,) on the defendants, the second mortgagees. They should be left to their remedy on the covenant. On principle, the case seems to me to be with the complainants; and several adjudged oases referred to on the argument sustain the principle. In Murray and others v. Lylburn and others, decided by Chancellor Kent, 2 John. Ch. Rep. 441, one Winter held certain lands in trust. The cestui que trust filed a bill against Winter, the trustee, charging him with a breach of trust, and obtained an injunction restraining him from acting as trustee, and from selling any of the trust-estate or assigning any securities. Winter, notwithstanding, sold part of the trust estate to Sprague, and took his bond and mortgage for the purchase money, and afterwards assigned Sprague's bond and mortgage to Lylburn. The question was, whether Lylburn, the assignee, was accountable to the cestui que trust for the bond and mortgage, as Winter, the assignor, would have been had he kept it. JSo doubt the bond and mortgage in the hands of the assignee, Lylburn, were subject to any equities existing in favor of Sprague, the mortgagor, against Winter, the mortgagee and assignor. But the bond and mortgage in Winter’s hands were subject to another equity; not an equity of the mortgagor, but an equity of a third person, the cestui que trust, who could have subjected them, in Winter’s hands, to the trust; as, in the case before us, the administrators of Dodd might, by virtue of the agreement, have postponed Condit’s mortgage to them, if it had remained in Condit’s hands. The question was, whether the bond and mortgage in the assignee’s hands, was subject to such an equity of a third person, not a party to them, because they were subject to it in the hands of the assignor. The Chancellor said that the rule that the assignee of a chose in action takes it subject to the same equity it was subject to in the hands of the assignor, is generally understood to mean the equity residing in the obligor or debtor, and not an equity residing in some third person against the assignor. That one about purchasing a bond from the obligee can always go to the obligor and ascertain what claims he may have against the bond; but that he may not be able, with the utmost diligence, to ascertain the latent equity of some third person against the obligee ; that he has no object to which he can direct his inquiries and that, for this reason, the claim of the assignee, without notice, was preferred in the late case of Redfern v. Ferrier, 1 Dow 50, to that of a third party setting up a secret equity against the assignor, thus sanctioning the decision in Dow, in which Lord Eldon said that if it was not to be so, no assignments could ever be taken with safety. The case we have in hand is much stronger in favor of the bona fide assignee than the case put by Chancellor Kent. The holders of the Dodd mortgage are chargeable with permitting the registry to remain unaltered, to mislead an innocent person ; and besides, they have a covenant from the other mortgagee, which was broken by his assignment, if the assignment is good and the mortgage first in execution and registry is entitled to preference. In Moore v. Holcombe, 3 Leigh 597, Holcombe sold land to Moore, and took no security for the purchase money. Moore then sold the land to F. and took his bond for the purchase money; then assigned the bond to a bona fide assignee having no notice of Holcombe’s claim to a lieu on the land for the purchase money due from Moore to him. It was held that though the bond, in the hands of Moore, the assignor, might have been subject to Holcombe’s equity, yet that Holcombe could not assert his equity against Moore’s assignee of the bond; that though a bond, in the hands of an assignee, is subject to any equity of the obligor, it is not subject to any equity of a third person not a party to the bond of which he had no notice. The case of Dearle v. Hall, 3 Russell 1, is authority for tiie complainants in this case. One having a beneficial interest in money in the hands of trustees, assigns it to A, but no notice of the assignment is given to the trustees; he afterwards proposes to sell the same interest to B; B inquires of the trustees as to the nature of the title and the amount of the interest, and receiving no intimation of any prior encumbrance, completes the purchase and gives the trustees notice. It was held, and E think rightly, that B had a better equity than A.

For myself, I should be satisfied to let the result to which I have come in this cause, rest on the ground on which, thus far, I have put it. But perhaps it is the duty towards the parties of a court whose decisions are subject to the review of a higher tribunal, to state every view that occurs to it which may have au influence on the decision of the cause, oue way or the other. This is a case which, in view of the facts as they are claimed to exist on the part of the defence, may be said to be of a very extraordinary character, so much so as to impress the idea that the defence should be examined with care. The view to which I have alluded as being proper to be suggested, respects the answer of the defendants. It appears to me there is an evident halting iu it as to several important matters. They say that, on the 26th August, 1836, they released the lot secondly described in their mortgage, to the owners thereof, according to law, from the operation and lien of their mortgage, and that the said release was made with the knowledge, approbation, and consent of A. Peck and of Samuel Condit; that afterwards, on the said 26th August, 1836, Condit made and entered into an agreement in writing, under his hand and seal, to and with the defendants, dated the day and year last aforesaid, whereby he stipulated and agreed, for the considerations therein named and referred to, to and with these defendants, that the said Dodd mortgage should be considered and held as the first lien on the land described in the mortgage to Condit, as by the said agreement, now in the possession of these defendants, will appear; that the said agreement was made and entered into by Condit, with a full knowledge that these defendants had made the said release. In a subsequent part of the answer, they say that the said agreement was made and entered into by and between the said Samuel Condit and these defendants, with the full knowledge, consent, and approbation of the said A. Peck, William Peck, and Elijah C. Pierson, at the time of the making thereof.

On looking at the writing called the agreement of Condit, we find it makes no reference whatever, to the release given by these defendants. It states the two mortgages, and that he, Condit, has agreed, for certain good causes and considerations, to give priority in payment to the Dodd mortgage, and then declares that, in’ consideration of the premises and of $1, to him paid (without saying by whom), he has thereby consented, covenanted, and agreed, to and with the said administrators of Dodd, that the Dodd mortgage shall be considered and held as the prior lien on, &c. This writing is signed by Dodd only. The release executed by these defendants, recites that A. Peck, on the 1st of May, 1830, had executed and delivered to Samuel M. Dodd a bond and mortgage for $2400 and interest, on certain premises in Orange, one of which is a lot, &c., (describing the second lot mentioned in that mortgage), and then declares that they, fpr a good and valuable consideration, and of $1 to them paid, “ by John Peck, the present owner of the said lot,” release the same from the operation of the said mortgage. The two instruments are separate and distinct from each other, neither having any reference to the other. Now, as to the character of the answer, it is to be remarked, first, that it does not allege that there was any connection between the two writings, or that one was executed in consideration of the other. It is, indeed, inconceivable how a release by the holders of the Dodd mortgage, to John Peck, of a lot covered by that, the subsequent mortgage, which the Condit prior mortgage did not cover, could be a consideration for Condit’s giving priority to the subsequent mortgage over his, on the only lot his mortgage covered, the only security he had. There is something in that which ordinary men, dealing upon ordinary principles and motives, cannot understand. But Condit’s agreeing and covenanting that the subsequent mortgage should be considered and held as the prior encumbrance on the lot covered by the first mortgage, might be an inducement or consideration for the holders of the subsequent mortgage to release' from its operation the lot covered by it which was not covered by the Srst mortgage. But, if that agreement was the consideration of the release, it is extraordinary that it was not stated in the release; and still more extraordinary that it was not so stated in the answer to be sworn to by these defendants.

Again, the answer does not state that these defendants were, or that either of them was present when Condit “ made and entered into the agreement, (to use the language of the answer,) nor that there had been any previous negotiation between Condit and them, or either of them, in reference to the subject matter of tiie release and agreement, or either of them. If the two were connected, and the release was given by these defendants, in consideration of Condit’s writing, called the agreement, the counsel for these defendants would certainly have obtained that information from the defendants ; he could not have failed to make the inquiry. And, if he was so informed, it is not conceivable' that the astute draftsman of their answer could have put the answer in the shape he has given it.

Again, it is not alleged in the answer, that the writing called Ooudit’s agreement was delivered to these defendants. A slight reading of the answer might make the impression that it was delivered to the defendants. The making the agreement, or writing called an agreement, is spoken of in several different places in the answer; but in each of them there is an absence of the allegation of delivery, a circumstance which we have not a right to overlook. In each of the different places the allegation is, that Condit made and entered into an agreement to and with these defendants. This seems to be going far for the defendants to swear to, if they were not present at the time the writing was made, and it was not delivered to them ; for an agreement in its proper legal sense requires the mind and assent of two persons. A reference to the language of the answer and of the writing itself will show on what ground the language of the answer was adopted. The answer says that he, Condit, made and entered into an agreement in writing, under his hand and seal, to and with the defendants. By turning to the writing we find that the answer uses the language and form of expression of the writing. The writing says, Be it known, &c., that I have consented, cov • enanted and agreed to and with C. and J. Baldwin and J. Dodd, administrators, &o. The answer says, he, Condit, made and entered into an agreement to and with, &c.; and in this form the defendants swear to the answer. We are not at liberty to say, under these circumstances, that the defendants intended to say, or that the draftsmán supposed they would be understood as saying, by the language adopted, either that the defendants were present when the writing was made, or had ever made any nego tiation or arrangement for such a writing, or that that writing was delivered to them. Indeed, if they had, and the writing had been delivered to them, it is hardly supposable that they, having executed a release of the other lot, would have been satisfied to let the registry remain as it was. If the writing was delivered to them, and they were satisfied to let the registry remain as it was, they must be considered as relying on the covenant of Condit. But the only thing like an allegation of delivery in the whole answer is the allegation that the writing “ is now,” that is, at the time of making the answer, in the possession of these defendants.

But I am glad that I have been able to decide the cause very satisfactorily to my own mind, by the application of a just and equitable general principle, and have not been obliged to put the decision of a case so unexampled in some of its features, on the defects in the answer on which I have felt it my duty to make the foregoing comments.

I am of opinion that the complainant’s mortgage is entitled-to preference.

Decree accordingly.