text:
    George Van Riper, complainant, and Roger Claxton and wife, defendants.
    1. Where the defence set up by the answer is of a character to require the complainant to make a new issue in order to meet it, he will not be permitted to do so without amending his bill, and adapting it to the case upon which he expects to sustain himself.
    2. The consideration of a mortgage was for a loan of money; and the defendant insists that the money was not advanced pursuant to the agreement, and the complainant meets that issue, but in doing so, attempts to show that if the money was not advanced in pursuance of the letter of the agreement, the advancement was sanctioned by the defendant.
    3. Held, that as the whole case was before the Chancellor upon the proofs made by the defendant himself, it would be too technical to turn the complainant out of court. If the defendant be entitled to the benefit of the objection, the court has the power, and has frequently exercised it, of allowing a bill to be so amended as to correspond with the case, even after proof taken.

      4. This is a case which would warrant the exercise of the power, if such a course.were.necessary.
    This cause was argued at Newark, December 8th, 1852, on bill, answer, replication and proofs. The opinion was delivered February Term, 1853. The pleadings and nature of the case upon the proof, sufficiently apoear in the opinion of the Chancellor.

      A. S. Pennington, for complainant.

      D. Barkalow, for defendant.
   The Chancellor.

The bill is an ordinary foreclosure bill. It alleges that the mortgage was given and executed by the defendants to the complainant, to secure the payment of a bond in the penal sum of sixteen hundred dollars, conditioned to pay eight hundred dollars, given by Claxton, the defendant, to the complainant, and that the consideration of the bond was money loaned by the complainant to Claxton.

The defendant Claxton admits the due execution of the bond and mortgage, and sets up this defence : He denies that the complainant loaned him any money, but alleges that the bond and mortgage were executed upon the following agreement : That he, Claxton, being desirous of erecting a dwelling-house on the lot of land embraced in the mortgage, entered into a written agreement with one Garrison to build it; that he was induced to let Garrison have the job of building the house on the promise of the complainant that if he would do so the complainant would loan him the money; that it was agreed between the complainant, the defendant and Garrison, that the complainant should advance the money for Claxton to Garrison for building the house, as follows : One hundred dollars on signing the building contract, and the balance from time to time as the building should progres, on receiving the order of George W. Hughes, who had the supervision of the work ; that of the eight hundred dollars, the complainant should pay Hughes one hundred and nineteen dollars, which sum Hughes had advanced for Claxton as the purchase money for the lot; the balance, of six hundred and eighty-one dollars, to be paid on the building contract, as before stated.

The answer further states that when the contract was signed the complainant paid Garrison, on the order of Hughes, one hundred and twenty-four dollars on the contract; but that Hughes has not at any time ordered or directed, or in any way assented to, the payment of any other or further sum of money on account of the contract, or for the defendant Claxton, or on any account whatever.

The answer further alleges that Garrison failed to use such materials and do the work in the manner as by the contract it was stipulated, and that in consequence of such default the defendant has been greatly damaged ; that Claxton failed to pay for the work done and materials furnished, and that by reason of such failure claims against Garrison, for such work and materials, were filed under the lien law in the county clerk’s office, and are liens upon the premises; that the reason why Garrison suffered the liens to be establisted, was because he was indebted to Van Eiper, and instead ofVanEiper’s paying him the money, and thus enabling him by putting him in funds to pay for the work and materials, Van Eiper credited him on the old debt.

It is first insisted, on behalf of the defendant, that he has proved clearly that no money was advanced to him by the complainant at the time of the execution of the mortgage, and that the money, if advanced at all, was on the special agreement, and that the complainant, therefore, cannot recover upon the case made by the bill. The bill simply charges a loan of money, and the execution of the bond and mortgage to secure its payment.

The case of Hopper v. Scisco, 1 Hal. Ch. R. 345, is relied upon to sustain this position. In that case, the complainant filed his bill in the form of an ordinary foreclosure bill, and set out the consideration of the debt secured by his mortgage to'be the loan of money. The defendant set up and proved that the mortgage was given as collateral security for certain judgments, obtained by different persons against Scisco, which had been assigned to the complainant, and which, after the mortgage was given, were satisfied by sales on executions; The complainant then attempted to sustain his case simply by showing that at different times he had paid to the sheriff of the county various sums of money on executions against Scisco in the sheriff’s hands. But the Chancellor very properly decided that the defendant was not called upon to meet such a case; that it was a surprise on the defendant, and that the matters attempted to be set up by the complainant were not at issue between the parties.

In the case before us, the substance of the agreement upon which the mortgage was executed was, that the complainant should loan the defendant eight hundred dollars, and, instead of advancing all the money upon the delivery of the mortgage, it should be advanced as the defendant should demand it, or upon the demand of a person named as his agent for that purpose. Whatever money was so advanced, was a loan from the eomplainant to the defendant, which this mortgage was executed to secure.

The defendant alleges that the money was not all advanced according to the terms of the agreement, and that, in equity, it should stand for so much only as was advanced in strict compliance with the agreement.

ft would, perhaps, have been most prudent for the complainant to have amended his bill, after the coming in of the answer. The defendant might have shaped his course so as to have compelled the complainant to do so. But as his defence, the defendant has spread out, in his answer, all the matters at issue between the parties. He has brought all the matters in controversy between them, by proof, before the court. He cannot say he is surprised. The whole case is before me. There is no difficulty, upon the pleadings and proofs, in deciding, without any embarrassment to either party, their respective rights. There is no good reason, therefore, why I should now dismiss this bill, and leave the matters open for further litigation.

Where the defence set up by the answer is of a character to require the complainant to make a new issue, in order to meet it, he will not be permitted to so without amending his bill, and adapting it to the case upon which he expects to sustain himself. In the case of James v. McKernon et al., 6 Johns. Rep. 543, the defendants set up, among other matters, an agreement, upon which they relied. The complainant was not permitted to show that the agreement was fraudulent, because the question of fraud was not put in issue by the pleadings.

In this case, the consideration of the mortgage was, substantially, and, I think, technically, too, for a loan of money. That the money was not paid down instanter, on the delivery of the mortgage, but was advanced in several sums after-wards, upon the order of the mortgagee, or his agent, to a third person, does not alter its character, as a loan from the complainant to the defendant. The defendant insists, the money was not advanced pursuant to the agreement, and the complainant meets that issue. The only difficulty is that, in meeting that issue, the complainant attempts to show that if , the money was not advanced in pursuance of the letter of the agreemént, the advancement was sanctioned by the defendant.

But, as I stated, the whole case is before me upon the proofs made by the defendant himself. I think, under such circumstances, it would be too technical to turn the plaintiff out of court. Indeed, I would not turn the complainant out of court, if I was of opinion that the defendant is entitled to the benefit of the objection. The court has the power, and has frequently exercised it, of allowing a bill to be so amended as to correspond with the case, even after proofs taken. It is a power which should be exercised discreetly. I think this is a case where the due administration of justice would warrant it, if such a course was necessary.

What are the merits of the case ? The defendant admits that one hundred and twenty-four dollars were paid down when the mortgage was delivered, and as to this’ amount, there is no difficulty. The further payment of $557 was to be made to Garrison, on the orders of Hughes, named as the agent for that purpose. After the building was partially finished, Garrison called for another payment on account, and it was made to him by the complainant. Hughes, sworn on the part of the complainant, says: I also verbally

authorized Mr. Van Riper, I think, to make the second payment, but am not certain, and cannot say whether I did or not.” He says, further, he gave him no order to make it, but he afterwards told him if it was right, he was perfectly satisfied. When Garrison said he had completed the building, the complainant advanced him the balance of the money, making, in all, $681,. being the full amount which, by the agreement, he was to advance to Garrison. This last payment, Hughes swears, was made without his order, and in violation of his express orders to Mr. Van Riper.

The question is whether, in equity, the mortgage should be declared as a valid, subsisting security for the whole of the money advanced, or for such part only as was in conformity with the agreement.

The defendant’s house has been built with this money, and he is now in the enjoyment of it. There is no proof that the payments were not paid in good faith by the complainant. The allegation in the answer, that the complainant was indebted to Garrison, and gave a credit on this indebtedness, instead of paying in money, is not proved. It is inequitable that he should enjoy the benefit of this money, on the technical ground merely that Hughes did not order it paid, and not be held liable for it as a debt. In resisting payment, the defendant places his equity, first, on the ground that Garrison did not build the house according to the contract. There was some difficulty between Claxton and Garrison as to the work, but from the evidence, it would appear the matter in difference was not of much magnitude. Hughes says, I wanted the work altered so as to conform to the contract; some portion of it was altered as I required, but I believe not all.”

But it appears that Claxton prosecuted Garrison on this contract, for not building and finishing the house according to its terms, and that he recovered in that suit $10 damages.

On the trial, Claxton offered in evidence a receipt of Garrison to the complainant for $681, being the amount of the payments which the complainant had paid to Garrison, and which he now claims on his mortgage. He has thus had the full benefit of the money paid, and has sanctioned the payments in the fullest manner, and the mortgage having been intended and executed to secure the money which the complainant should advance to Garrison, it should be held, in equity, a lien upon this property which ought to be satisfied.

But the defendant further insists that the liens filed in the clerk’s office are encumbrances upon the property, and have become such in consequence of the conduct of the complainant.

It is unnecessary for me to determine whether these liens filed are valid encumbrances or not.

I cannot see how the complainant is to be held responsible for any such consequences. If the complainant had not advanced the money to Garrison, there might be some propriety in charging him with the default of Garrison, it being his duty to provide Garrison the means. If his failure to do so had embarrassed Garrison, so as to prevent his paying for the materials for the building, there might be some just cause of complaint. But he was in no way bound for the honesty and fidelity of Garrison, and I do not think he is to be held responsible for his misconduct.

A reference must be taken to a master to take an account of the payments made by the complainant to Garrison, on account of the defendant, and to allow interest on such payments, from the time they were respectively made. The complainant is entitled to nothing more on his mortgage, except the sum paid Hughes, and interest upon it, which is to be included in the account.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Between Joseph Izard, complainant, and Joel Bodine, defendant.
    1. Where a matter of fact has been referred to a master, depending upon the testimony of witnesses conflicting in their opinion, and differing in their- recollection of past events, the decision of the master ought not to be interfered with on his mere judgment of the facts, unless it is a very plain case of error or mistake.
    2. A master was directed to take an account of the waste, spoil and destruction, if any, committed or suffered on the premises, while the defendant, or any person claiming under him, remained in possession. Held, that he would not have been authorized to go behind the decree to consider equities existing between the parties, which would entitle the plaintiff to any but the ordinary rule in taking the account; those equities are for tho consideration and determination of the Chancellor, ifo special directions having been given in the decree, it was the plain duty of the master to follow the ordinary rules in taking the account.
    This ease was argued at October Term, 1852, on exceptions to master’s report.

      W. Halsted, for complainant, in favor of exceptions.

      A. Browning, contra.

   The Chancellor.

On the 29fch of June, 1850, the Chancellor made an interlocutory decree, after hearing the case on the pleadings and proofs.

He declared that the complainant was entitled to relief; and ordered a reference to the master, to take an account of the yearly rent and value of the premises, from the twentieth of June, eighteen hundred and forty-eight, until the time of making his report; and also to take an account of the waste, spoil or destruction, if any, committed or suffered on said premises, while the defendant, or any person claiming under him, remained on the premises.

On the coming in of the master’s report, the defendant filed the exceptions, which were in substance as follows:

First. That the master had estimated the yearly rent and value of the premises at too low a sum.

Second. That he had not allowed interest on the yearly rent and value.

Third. That the master had not made a sufficient allowance for waste, &c.

As to the first exception. It was a matter of fact submitted to the master, depending in a great measure upon the opinion of witnesses. In taking the testimony, or in applying it $o the case submitted to him, I cannot see that the master has violated any principle of law. If he has erred, that error is to be found in his judgment upon the facts. He has had the witnesses before him, personally, and has thus had an opportunity of judging of the weight their evidence is entitled to.

Where a matter of fact has been referred to a master, depending upon the testimony of witnesses conflicting in their opinion, and differing in their recollection of past events, the decision of the master ought not to be interfei’ed with on his mere judgment of the facts, unless it is a very plain case of error or mistake.

I cannot say that I am dissatisfied with the report of the master as to the yearly rent and value of the premises.

As to the second exception, the master was not directed to allow any interest; and whether or not the complainant is entitled to interest is a matter for the further consideration of the court.

The remarks I have made as to the first exception are applicable to the third. But the counsel of the complainant insists that the master should have allowed for something more than ordinary waste, and that the complainant was entitled to something more, from the nature of his cáse, as made by the pleadings and proofs.

The master was not authorized to go behind the decree. He was directed to take an account of the waste, spoil and destruction, if any, committed or suffered on the premises, while the defendant, or any person claiming under him, remained in possession. If there were equities existing between the parties, which entitled the complainant to any other than the ordinary rule, in taking this account, those equities were for the consideration and determination of the Chancellor, and not of the master. ISTo special directions having been given in the decree, it was the plain duty of the master to follow the ordinary rules in taking the account.

I cannot, therefore, sustain this exception, as the interlocutory decree now stands. The account has been taken in the ordinary mode, and the master could adopt no other.

The exceptions are overruled, with costs.

Cited in Hudson v. Trenton Locom. and Mach. Manuf. Co,, 1 C. E. Gr. 478; Clark v. Condit, 6 C. E. Gr. 328.


author: The Chancellor’.

text:
    Elbzabeth S. Fisher et al. v. Jacob F. Quick et al., Executors of John P. Quick.
    A complainant cannot he permitted to have his bill dismissed without costs, unless by the consent of the defendant in open court, or by agreement in writing.

      R. S. Field and W. L. Dayton, for complainants.
    P. D. Vroom, for defendants.
   The Chancellor’.

It is now moved, on behalf of the complainants, for leave to dismiss their bill, without costs.

The defendants object to the motion. A complainant cannot be permitted to have his bill dismissed without costs, unless by the consent of the defendant in open court, or by agreement in writing.

In the case of Fiddle v. Evans, 1 Brown’s Reports 267, there was an agreement in writing between the parties that the bill should be dismissed, without costs. The court thought they could not make an order to dismiss without costs but upon consent in open court, and gave a rule to dismiss, unless cause should be shown to the contrary.

It has been the practice of this court to grant such order upon the written consent of the parties. But I have been unable to ascertain any case where this court has allowed such motion, unless upon consent in court, or on filing an agreement of the parties to that effect.

In an anonymous case in 1 Ves., Jr., 140, on a motion on the part of the plaintiff to dismiss his bill without costs, the Lord Chancellor said, “ I am afraid it is beyond the course of the court; you may set down a cause upon a bill and answer, and either have a decree, or have the bill dismissed with or without costs, according to the justice of the case. Though they do not appear to oppose it, yet if they do not appear to consent, you are in as bad a way ; you may dismiss your bill, with costs, if you please.”

In that case, the bill was an injunction bill to restrain the defendants from taking judgment at law, and for delivering up deeds to be canceled. The complainant was entitled to his decree had he chosen to follow up his suit, but he had accomplished his object in a more summary way in the Court of King’s Bench.

In 1 Ves., Jr., 402, on like motion, the Lord Chancellor refused the motion immediately, saying he could not conceive a case in which a plaintiff could dismiss his bill without costs; that to dismiss it with costs was a motion of course, but that he could not then dismiss it without consent.”

I am not aware that, in our practice, there has been any departure from these authorities.

This case is before the court under very peculiar circumstances. It is unnecessary for me to go into detail, as those ’ circumstances are well understood by the counsel on both sides.

The complainants may take their account under their interlocutory decree, which they have already obtained, and which has been affirmed in the Court of Errors, and then set down their cause for final hearing.

It does not follow that because I may refuse the complainants a final decree, and order their bill dismissed, that they will be ordered to pay the costs. That will be a matter for the discretion of the court, to be exercised under all the circumstances of the case.

It is proper, perhaps, under my present impressions, to advise the defendants to consent to the motion, upon the complainants stipulating not to prosecute the subject matter of the bill in another shape.


text:
    Between Rulif V. Schanck and wife, complainants, and John Arrowsmith et al., defendants.
    1. A testator gives a specified sum. to each of his four daughters, to be paid to them one year after his decease by one of his sons, to whom (after giving an inconsiderable portion of the real estate to another son) he devises all the residue and remainder of the real estate, and declares, “The real estate above devised to my son is to be hound for the payment of the several sums, until paid to my several sons and daughters.”
    2. The claims of the legatees to charge the land for the payment of the legacies are resisted, on the ground that they have given to their brother, the devisee, receipts in full for the payment of their respective legacies.
    3. It was held that the legal effect of the receipt was to discharge the land of the lien, and, standing without impeachment, it was a bar to the complainants’ recovery in the suit. But that it was not conclusive between the parties — it was open to explanation. It was competent for the complainants to show that the money was not paid, or that the receipt was not in fact what it purported to be, “ in full ” for the legacy. That the principle was well settled that the taking of an additional or other security of inferior or equal degree, would not ipso facto discharge a lien which attached by reason of an original security. It is always a question of intention, sometimes to be ascertained by the legal construction and effect of written instruments, sometimes by the circumstances of the case. So where a receipt was given “ in full for the legacy,” and the money was not paid, but the devisee gave his promissory note, although the legal presumption, from the receipt “ speaking for itself,” was that the legatee intended
      to relinquish her lien upon the land, and intended to receive the note in satisfaction, yet this presumption could be overcome by positive testimony or 'by circumstances. And as it was not satisfactorily shown that the legatee understood ber rights, and was aware that the receipt would affect her legal rights under the will, the court would not give the effect to the receipt of destroying the lien upon the land.
    4. And this lien will have priority over a mortgage or judgment executed or obtained after the notes were given, even where the mortgage was received, and the debt for which judgment was obtained was contracted, under the supposition that the land was free of the liens. Tfor neither the judgment creditor nor the mortgagee loses anything by any confidence they placed in the fact that the receipts were given. But they were mistaken as to the law.
    5. One of the legatees had obtained judgment upon the note given as above stated, and had also presented her claim to the auditors, under an attachment which had been issued. Held, that this could not affect her lien under the will. She had two remedies within her reach — she could prosecute on the personal liability, or enforce the lien against the land. She might pursue both remedies simultaneously.
    6. Another of the legatees, who had obtained judgment some nine months before the attachment issued, caused execution to be issued on her judgment, by virtue of which a levy was made on the land in controversy, and also on personal property sufficient to satisfy the judgment and execution. After the levy, and prior to the issuing of the attachment, a number of attachments were issued by justices of the peace, and by virtue thereof, the same personal property was levied upon. An arrangement was made between the legatee and the attaching creditors, by which she transferred to them her judgment. The attaching creditors gave her their joint note for the amount due, and took an assignment o£ the judgment and execution. They then sold the personal property by virtue of their attachments, canceled their note to the legatee, and re-transferred to her the judgment and execution. Held, that she had no right, directly or indirectly, voluntarily to relinquish her lien upon the property for the benefit of any other creditor, and that a subsequent bona fide judgment creditor must have the preference. That her judgment represents her legacy, and whatever equities attach to the judgment, as between it and subsequent bona fide encumbrances, her lien under the will must be subjected to.
    7. Where real estate is devised to the same person who is directed to pay a legacy, the legacy will be an equitable charge upon the real estate so devised, unless a contrary intention is expressed in the will, or can be fairly implied from its provisions.
    The bill alleges that John Arrowsmith, late of the county of Monmouth, died possessed and seized of considerable real and some personal estate; that at the time of his death he left the following will, to wit: “ I do order that all my just debts and funeral charges be paid and satisfied as soon as can conveniently be done after my decease, by my son John Arrowsmith. Item. I give and bequeath unto my wife, Mary Arrowsmith, the use and occupation of my mansion-house and kitchen during her widowhood, and also to be comfortably supported by my son, John Arrowsmith. And he also to pay unto my said wife, Mary, the legal interest of two hundred dollars yearly and every year during her widowhood. I also give unto my said wife my black girl, named Isabel, during her term of servitude; but if my wife should die before her term of servitude expires, then it is my will that the same Isabel should serve the remainder of her term with my daughter, Maria Arrowsmith. I also give and bequeath to my wife one bed, and bedding for the same, her choice, and household and kitchen furniture sufficient to furnish her room in said house ; and also two cows of her choice —the said cows to be kept on the farm — to her heirs and assigns forever; which said bequest and grant I give to my said wife in lieu and in full of dower, or right of dower and interest in my said estate. Item. I give and bequeath unto my four daughters, viz., Maria Arrowsmith, Lydia Arrow-smith, Miranda Arrowsmith and Gitty Arrowsmith, each three hundred dollars, to be paid to them, their heirs or assigns^ one year after my decease, by my son John. I also give unto my four daughters above named, each one bed and bedding — Maria to have the choice after her mother; and each six silver teaspoons, to them, their heirs, executors, or administrators, or assigns forever. Item. I give and devise to my son, Simon Arrowsmith, my lot of salt meadow on Cheesequake creek, containing about four acres, be the same more or less; also, ten acres of woodland next and adjoining the lands of Hannah Pitney; the said ten acres to be so laid off as to make the line next to my homestead farm parallel with said Hannah Pitney’s line; also,-1 give and bequeath unto my son, Simon Arrowsmith, the sum of one thousand dollars, to be paid by my son John, five years after my decease. Item. I give and bequeath un(o my two sons, Thomas Arrowsmith and William Arrowsmith, the sum of one hundred dollars each, to be paid by my son John, one year after my decease. I give, grant, devise and bequeath unto my son John Arrowsmith, his heirs, executors, administrators or assigns, all the residue and remainder of my estate, both real and personal, of whatsoever kind and description, not hereinbefore disposed of in this my last testament and last will; also, all my notes, bonds and books of account, I give unto my son John. The real estate above devised to my son John is to be bound for the payment of the several sums until paid to my several sons and daughters. And, lastly, I hereby nominate, constitute and appoint my two sons, Simon Arrowsmith and John Arrowsmith, the executors of this my last will and testament, and hereby revoking and disannulling all former testaments and wills by me made.”
    The bill further charges that John paid off the legacies to his brothers; that he gave his promissory notes to Lydia and Miranda (now the wife of John Crawford, one of the defendants,) for their legacies ; that Lydia recovered a judgment against John in the Circuit Court of the county of Monmouth, upon the note given to her, and that Crawford and wife likewise recovered a judgment on their note; that John gave to the complainant Gitty a note for her legacy; that the said note was not payable to her order or assigns, and was not in the form of negotiable paper, and was represented to her by John as in no respect affecting the complainant’s (Gitty’s) rights under the will, but was intended solely as a means of enabling him with more facility to settle up the estate ; that the note is now in the possession of the complainants, subject to any order of the court; that the legacy is a lien upon the real estate devised to John, and that he took possession subject to said charge; insists that the said legacy is now a lien on the real estate, notwithstanding the note; that John is insolvent, and has left the state; that since the date of the said note the said John has executed a mortgage on the said land to Hendrick Longstreet to secure the sum of $2000 ; that Austin Reed and Daniel Craig, under the name of Reed & Craig, obtained a judgment against John for five hundred dollars and upwards ; that Thomas J. Beedle has issued out a writ of attach-meat against John as an absconding debtor, and by virtue thereof has attached the said lands and premises; that no part of the principal, and but a small part of the interest of her legacy, has been paid to the complainant Gitty.
    The prayer is, that the legacy to Gitty, with the interest thereon, may be decreed to be a charge upon said real estate devised to John ,by the will of his father, and that in default of payment,-so much of the said real estate be sold as may be necessary to satisfy the said encumbrance, and all such other encumbrances, if any, as shall seem reasonable and just, &c.
    To this bill Mary, Lydia and Miranda, with her husband, John G. Crawford, filed their joint and several answers, and after admitting the allegations of the bill, Mary, (the widow) answering for herself, says : That John has only paid her the legal interest on the two hundred dollars up to the 11th December, 1836 ; that for the last two years John has been extremely intemperate; that in 1846 the mansion-house and kitchen, named in the will, burnt down, and that although John built a new house, he refused to furnish her with a comfortable support, according to the terms of the will; that in 1836 John’s habits became grossly intemperate,, and his conduct to her so cruel that it was dangerous for her to live with him; that for a long time previous thereto he had neglected and refused to support her comfortably on the premises or anywhere else, and that she was obliged to take refuge with her daughter Lydia, and that John has, ever since the 29th of October, 1846, refused to furnish her any support; that he refused to furnish her with the two cows named in the will. She insists and claims that her right to the use and occupation of the mansion-house and kitchen, to a comfortable support, and to the legal interest on two hundred dollars a year during her widowhood, and to the keeping of the two cows, are liens upon the real estate devised to John; and that an account should be taken of the value, of the use and occupation, of the value of a mansion and kitchen as good as that existing at the death of her husband, during her widowhood, and of the value of her comfortable support during her widowhood, and what may be due her for arrears of said support, and the use and value of keeping two cows, and of the arrears of rent due her yearly on the two hundred dollars, and that the gross or weekly, or yearly value thereof, and of all arrears, may be ascertained and declared to be a first lien on the said real estate, and be first paid out of the proceeds of the sale thereof.
    Lydia admits the payment of fifty dollars on her legacy, and states that John gave her his note, not negotiable, for the balance, being two hundred and fifty dollars, dated July 23d, 1838 ; and that in August, 1848, she recovered a judgment on the note, together with other claims, for an amount of four hundred and sixty-three dollars and seventy-seven cents ; that, when John gave her the note, he represented to her it would in no wise affect her claim under the will, but was intended solely as a means to enable him with more facility to settle the estate, and that the said note now remains in her hands unpaid.
    Crawford and wife admit that, on the 4th of May, 1847, John gave his promissory note to Miranda for two hundred and thirty-five dollars and seventy-two cents, the amount of principal and interest then due her on her said legacy ; that it -was payable to her and not to her order, and was not negotiable, and that, at the time he gave it, John made the like representations to her as he had made to his other sisters; that they have recovered judgment on the said note, and that the. said note remains in their hands unsatisfied. The defendants state that there is no personal property to pay the legacies; that John is insolvent, and they insist that the legacies and widow’s claims are liens on the said real estate.
    Thomas J. Beedle, by his answer, sets up his judgment in attachment. He insists that the notes and receipts given at the time, (which are more fully set out in John Arrowsmith’s answer,) and the judgments obtained, are extinguishments of any lien upon the lands.
    And he further says that, as to Lydia’s claim, that after she had obtained judgment and issued execution thereon, and levied on the real and personal estate of J. A., several attachments were taken out before a justice of the peace, against the property of J. A., and judgments obtained thereon ; that the levy on her judgment and execution being prior' to the attachments, the attaching creditors applied to Lydia to purchase her judgment, and did purchase it; that this was done to enable them to make the money on their attachments out of the personal estate, and thereby throw the whole amount of Lydia’s said execution on the realty; that, after they had so purchased the said judgment, they proceeded to sell under their attachments the personal property of J. A., holding, at the same time, the older execution issued on Lydia’s judg-. ment; that, after this was accomplished, they assigned the judgment back again to Lydia, and took up a note which they had given for the same.
    As to Miranda’s claim, the defendant further states that she and her husband have filed their claim before the auditors in attachment, and have thereby waived their lien upon the land.
    John Arrowsmith admits the giving of the promissory notes to his three sisters, but alleges that, before he settled the estate in the Orphans’ Court, to wit, on the 16th day of December, 1835, he settled with his sisters; that, at the settlement, he took from Gertrude the following receipt, viz.: “ Received of John Arrowsmith, one of the executors of Henry M. Arrowsmith, deceased, three hundred dollars, and one bed and bedding, appraised at forty dollars, and six silver spoons, in full of legacies bequeathed to me in the last will and testament of said deceased. December 16th, 1835. Gertrude Arrowsmith.” And that he took from Miranda and Lydia like receipts; that, at the time the receipts were given, he did not pay in money, but gave to them severally his promissory notes for the same, or such part or parts thereof as he did not then pay and satisfy; that the said notes were taken with the assent of the legatees; that, at the time they were taken, he stated to them he wished them to take the notes and to give them their receipts in full for said legacies; that he wished to have his farm clear of the lien or charge of said legacies, as he might want to sell it. And it was expressly understood, and agreed and intended, by the said parties, at the time, that by taking the said notes and giving the said receipts, the farm and said estate should be cleared and exempted from the charge of the said legacies. He admits the recovering of the judgments by Lydia and Miranda, and insists that the legacies are not liens rjpon the land, but that they must look to their judgments and to him personally, for payment.

      W. L. Dayton, for complainants, cited 1 Smith’s Leading Cases 260; 21 Wend. 450; 19 Ib. 516; 1 Hill 517; 2 Wash. Cir. Ct. R. 191, 193; 5 John. 68, 73; 8 Ib. 389; 9 Ib. 310; 15 Ib. 247; December No. A. L. R. 87; Chitty on Con. 294, 299; 1 Hal. Ch. R. 493.
    P. D. Vroom, for John Arrowsmith and Thomas J. Beedle.
    P. T. Vredenburgh, for the administrator of the widow and Lydia and Miranda, cited 1 Dallas 420; 20 Wend. 17; 13 John. R. 244 ; 14 Ib. 404; 4 Cowen’s Rep. 567; 3 East 258 ; 2 Binney 152; 11 John. 513; 1 Cowen 578; 5 Wend. 129; 4 Ib. 339; Fonb. Eq. 182.
   The Chancellor.

The object of the bill is to raise, by sale, out of the real estate of which Henry M. Arrowsmith died seized, the amount of a legacy, which, by his will, he left to his daughter Gertrude, one of the complainants.

John Arrowsmith is made a defendant in the suit, because he is the devisee of the real estate upon which, it is alleged, the legacy is chargeable.

Mary Arrowsmith, who, since filing the bill, is deceased, and is now represented by her administrator, was made a defendant, because, as the widow of the testator, she claimed a lien or charge upon the estate, by reason of a bequest made to her by the testator.

Mary, Maria, and Lydia Arrowsmith, and Miranda Crawford, are made defendants, because they claim, as legatees of the testator, like liens as the complainants, for legacies to them, respectively.

Hendrick Longstreet holds a mortgage on the land, executed to him by John Arrowsmith, the devisee, and Thomas J. Beedle is a judgment creditor of John Arrowsmith.

By the pleadings, the rights of all these persons are to be determined and adjusted.

As to all the parties claiming under the will, with the exception of Mary Arrowsmith, the widow, their rights are not controverted.

To his daughters, Maria, Lydia, Miranda, and Gertrude, the testator gives the sum of three hundred dollars each, to be paid to them, their heirs and assigns, one year after his decease, by his son John; and, after giving an inconsiderable portion of his real estate to his son Simon, he devises all the residue and remainder of his real estate to his son John, in fee, and declares, The real estate above devised to my son John, is to be bound for the payment of the several sums, until paid to my several sons and daughters.”

The claims of the legatees in this suit, to charge the land for the payment of their legacies, are resisted, on the ground that they have given to John Arrowsmith, the devisee, receipts in full, for the payment of their respective legacies.

The rights of the parties will be examined separately, as they vary, in some particulars which are deemed of importance.

Eirst, as to the claim of Gertrude, one of the complainants.

On the 16th of December, 1835, Gertrude gave to John the following receipt: “Received of John Arrowsmith,

one of the executors of Henry M. Arrowsmith, deceased, three hundred dollars, and one bed and bedding, appraised at forty dollars, and six silver spoons, in full of legacies bequeathed to me in the last will and testament of said deceased.”

The fact of a bed and bedding and six silver spoons, being included in the receipt, has no bearing upon the question raised. They are articles specifically bequeathed to the legatee by the will.

The legal effect of this receipt is to discharge the land of the lien, and standing without impeachment, is a bar to the complainants’ recovery in this suit. But it is not conclusive between the parties. It is open to explanation and it is competent for the complainants to show that the money was not paid, or that the receipt was not, in fact, what it purports to be, “ in full ” for the legacy.

It is admitted that at the time the receipt was given, the money specified therein was not paid, but that John gave to his sister his promissory note for the amount. That note remained outstanding until the fourth of May, 1847, when it was renewed by a note of four hundred dollars. Some interest was, from time to time, paid on the notes.

It was not controverted on the argument that the principle is considered as well settled, that the taking of an additional or other security, of inferior or equal degree, will not ipso facto discharge a lien which attached by reason of an original security. If the original security is actually canceled, or the lien created by it formally released, of course no resort can be had to it. It is always a question of intention ; sometimes to be ascertained by the legal construction and effect of written instruments ; sometimes by the circumstances of the case.

But the defendants rely upon the receipt. They say it is a receipt in full ” for the legacy. It is the evidence that Gertrude received the note in satisfaction, and that she thereby intended to relinquish her lien upon the land. Prima facie this is so. The receipt speaking for itself, will have that effect; such is the legal presumption, and it must be so construed, unless there is something — either positive testimony, or circumstances of a character to overcome the presumption.

John Arrowsmith, in his answer, says that at the time he gave the note, he stated to his sister that he wished her to take his note, and to give her receipt in full of the legacy — - that he wished to have his farm clear of the lien or charge of the legacy, as he might want to sell it; and that it was expressly understood and agreed, and intended by both parties at the time, that by taking the note and giving the receipt the real estate should be cleared and exempted from the charge of the legacy.

These allegations are not proved, and the defendant is not entitled to the benefit of them, except as negations to charges in the bill. The bill alleges that when the note was given, John represented to the complainant Gertrude that it in no respect affected her rights under the will. The portion of the answer alluded to is responsive to this charge, and a denial of it; but when the defendant goes further, and alleges a different agreement or understanding, he must,-in order to derive any benefit from it, prove it as it is alleged in his answer.

Looking at the character of the transaction itself, and the circumstances under which the receipt was given, what did the parties intend by that receipt ?

The testator had given the largest portion of his estate to his son John. He had cut off this daughter from the inheritance of the real estate, and in lieu of it, directed John to pay her three hundred dollars, and declared, in express terms, that the legacy should be a charge upon the laud until it was paid. He dies and leaves his widow, his son, John, and his four daughters, living upon the homestead. Soon after his father’s death, John gives each of his sisters a note for their respective legacies, and draws up receipts in his own handwriting, for each of them, which they sign, purporting to be “in full” for their legacies. No person was present to act on behalf of the girls, and explain to them their legal rights, or. the effect of the receipts they were about to give. They were dealing with a brother in whom they confided, and upon whom they felt in a measure dependent. Why should they have taken John’s mere personal security and released the land ? Their father, by his will, had secured to them their legacies upon the land. He did not see proper to trust to the mere personal security of his son. The relation of the parties must be looked at— the character of the debt, the consideration given, and the circumstances attending the whole transaction — in order to determine what effect ought to be given to the receipt. It appears to me, in looking at the whole case, a court of equity ought not to give the effect to that receipt, of destroying the lien upon the land, without its being satisfactorily shown that Gertrude understood her rights, and was aware that the receipt would affect her legal rights under the will. We can hardly suppose that she understood the difference between a receipt “ in full ” for the legacy or a mere receipt for the notes given to her. If that receipt is to discharge the land, the legatee relinquished, without any consideration, the very security by which her father intended to make her legacy secure to her.

In the case of Sutton et al. v. The Albatross, reported in the December number of the American Law Register, Mr. Justice Grier, in a case where a receipt “in full” was set up as extinguishing a lien, remarks “ The giving the receipts for the notes, as in full of the account, it is true, is prima facie evidence that such was the case. But a receipt is no estoppel; and when we consider how little attention is usually paid to the peculiar form or expressions of such documents, signed by mechanics and drawn up by the clerk of the employer, such formal words may be easily rebutted, by showing the true nature of the transaction. The note taken is no higher security than the account, and unless the transaction shows an intention to surrender without consideration, the better security, these formal words in a receipt given, when the account is settled, ought not to be considered as at all conclusive of an intention to receive the lesser security as satisfaction.” See also case of Jones v. Shawhan, 4 Watts and Serg. 263. I do not think the receipt destroys the lien upon the land.

But it is further insisted that this lien should be postponed to the payment of Longstreet’s mortgage and Beedle’s judgment.

As to the mortgage, the mortgagee sets up no equity, and asks for no priority over this lien. If the mortgagee was misled by the receipt or by the conduct of the complainant Gertrude, so as to entitle him in equity to have his lien preferred, he should have come in by answer and set up his equity. The bill charges the mortgage to be a subsequent encumbrance. So it is upon its face. If there are any circumstances to give it a preference they must be placed upon the record, and be submitted to the decision of the court.

Beedle, the judgment creditor, has answered. His judgment was obtained on an attachment in 'the year 1849. He alleges that when his debt was contracted he understood, and believed that the legacies had been settled and arranged by John — that he knew by information from John, that receipts had been given for the legacies, and that it was known by others that a settlement had been made by John with the legatees, and that they had taken his notes for the amount and in satisfaction for the legacies. He does not pretend that he gave John credit, or that the debt in question was contracted upon the faith of John’s owning the property free of these liens. He made no inquiry of the legatees. He knew the legacies were not paid, and that John had given nothing more to liquidate them than his promissory notes. He knew the circumstances, and he supposed the lien on the land was discharged. He was mistaken as to the law. He loses nothing by any confidence he placed in the fact that the receipts were given.

I think the amount .due Gertrude on her legacy is a lien upon the land, and has priority over the mortgage and judgment.

The claim of Miranda Crawford rests upon the same ground as that of Gertrude, with the exception that upon the note given her she obtained judgment against John Arrow-smith, and also presented her claim to the auditors under the attachment.

The fact of her obtaining judgment, cannot, I think, affect her lien under the will. She had two remedies within her reach. She could prosecute John on his personal liability or enforce her lien against the land. ' She might pursue both her remedies simultaneously without affecting either, or one of them, at her pleasure; and until the debt was discharged by actual payment, no objection could be made to either prosecution. The judgment did not discharge the debt, nor was it a merger of the claim upon the land. Yor can I see that the presenting her claim to the auditors could abridge her rights. The judgment was obtained May 1st, 1849, and was subsequent to the attachment. She knew her claim under the will was a matter to be contested. From abundant caution, she presented her claim to the auditors, and not with the intention of abandoning any lien or priority she might otherwise have.

As to the claim of Lydia. Upon the note given her she obtained judgment some nine months before Beedle’s attachment was issued. By John Arrowsmith it is insisted that the course pursued by Lydia under her judgment was an abandonment or waiver of her lien under the will; and by Beedle it is insisted further that, if not a waiver, it ought to postpone her claim upon the land to his judgment, as well as to Longstreet’s mortgage.

Lydia caused execution to be issued on her judgment, by virtue of which a levy was made on the land in controversy, and also on personal property sufficient to satisfy the judgment and execution. After the levy, and prior to the issuing of Beedle’s attachment, a number of attachments were issued by justices of the peace, and by virtue thereof the same personal property was levied upon. An arrangement was made between Lydia and these attaching creditors by which she transferred to them her judgment.

It was a mere formal arrangement, entered into for the purpose of so controlling that judgment and execution as to appropriate the personal property to the payment of the attachments, and throwing the whole burthen of the judgment upon the real estate. The attaching creditors gave Lydia their joint note for the amount due, and took an assignment of her judgment and execution. They then sold the personal property by virtue of their attachments, and realized out of the sale the sum of three hundred and eighty-six dollars and fifty-seven cents. Their note to Lydia was then canceled, and the judgment and execution transferred to her.

If John Arrowsmith had set up his answer, and insisted that the judgment of Lydia should be declared satisfied as against him, I should, under all the circumstances attending the transactions, have been much inclined to that conclusion. From the testimony of Sheriff Conover, it appears that he levied upon personal property worth from eight hundred to one thousand dollars. It was taken under the law, by the sheriff, to pay that execution, and the defendant was deprived of all control over it. There is no pretence that it was left with the defendant at his request, or for his accommodation. The sheriff' having taken the defendant’s property to pay the debt, the defendant had a right to have it so appropriated. The moment the sheriff took the property, the defendant was entitled to have it credited on his execution. The defendant could not compel him to sell it. If the sheriff did not sell it, he was accountable to the plaintiff. If the plaintiff has, in any way, relieved the sheriff from that accountability, he had a right to do so ; but in doing so he cannot affect the rights of the defendant. The plaintiff, by process of law, took the property out of the defendant’s possession to pay the debt due on the execution. She had no right, directly or indirectly, voluntarily to relinquish her lien upon it for the benefit of any other creditor without the consent of the defendant. Look at the consequences to the defendant in this ease. Lydia obtains judgment against-him, and levies upon personal property to the amount of upwards of eight hundred dollars, more than twice sufficient to pay the judgment. The defendant leaves the state, and some five or six attachments are taken out against him. The judgment and attaching creditors then arrange between themselves to give the latter the preference, and finally this property, which, when taken by the sheriff, was worth from eight hundred dollars to one thousand dollars, is sold by constables for three hundred and eighty-six dollars and fifty-seven cents. "Who ought to bear this loss ? Most assuredly the judgment creditor, unless he can show some good reason why, in equity, the burthen should be placed upon the debtor.

As to Beedle, who is a subsequent bona fide judgment creditor, I have no doubt as to the equities between his judgment and that of Lydia Arrowsmith’s. According to the principle recognized in the case of Johnson v. Tuttle and others, decided at this term, Beedle’s judgment must have the preference. Lydia’s judgment represents her legacy. Whatever equities attach to the judgment, as between it and subsequent bona fide encumbrances, her lien under the will must be subjected to.

Let a decree be drawn in conformity to these views.

The only subject remaining for consideration is as to the rights of Mary Arrowsmith, the widow, under the will.

The testator orders his son John to pay all his debts, and then declares, “ I give and bequeath unto my wife, Mary Arrowsmith, the use and occupation of my mansion-house and kitchen during her widowhood, and also to be comfortably supported by my son, John Arrowsmith, and he also to pay unto my wife Mary the legal interest of two hundred dollars yearly and every year during her widowhood. I also give and bequeath to my wife one bed and bedding for the same, her choice, and household and kitchen furniture sufficient to furnish her room in said house; and also two cows to be kept on the farm, to her heirs and assigns forever; which said bequest and grant I give to my said wife in lieu and in full of dower, or right of dower, in and to my estate.” The testator then gives pecuniary legacies to each of his four daughters, and to three of his sons — a small lot of land to another, and then all the residue and remainder of his estate, real and personal, he devises to his son John, and then makes the legacies to his sons and daughters in express terms charges on the real estate devised to John. By his answer, John neither admits or denies the bequests to his mother to be charges on the land, but answers he was always ready and willing to perform what was enjoined on him under the will, and to give her a comfortable support, and did actually furnish and supply her with more than the requirements of the will.

It has frequently been decided that where the real estate is devised to the same person who is directed to pay the legacy, it will be an equitable charge upon the real estate so devised, unless a contrary intention is expressed in the will, or can be fairly implied from its provisions. Harris v. Fly and others, 7 Paige 421, and cases there cited; also 1 U. S. Eq. Dig., p. 382, § 735. The case of Mathewson v. Saunders, 11 Conn. 104, is much in point.

In this case the will provides a home for the widow on the land, and orders John, the devisee of that land, there to maintain and support her. It directs her to release her dower in the land to John, and leaves her without means of support, except such provision as John is ordered by the will to provide her. It was the intention of the testator, fairly inferable from the whole will, that his real estate should be chargeable with the support of his widow, and should be bound for the payment of the legacies he had given her.

It is proper, from the evidence before me, to give some directions as to taking the accounts of the widow’s claims.

By the will, she was to occupy the house and kitchen on the land. These buildings were destroyed by fire, some years after the testator’s death. It is insisted that John was bound to replace them, or give her an equivalent. This is not so. The loss must be sustained by the widow. The land is only to be charged for such reasonable sum as would have supported her, if occupying the dwellings designated and provided for her. And, in taking the account for her support and maintenance, it must be taken only from the time of instituting these proceedings. It is not denied that John provided for her while she lived on the farm, and there is evidence that afterwards, while she resided with her daughter Lydia, he furnished provisions for the family, and did a large amount of work for Lydia, which may be properly considered in the light of compensation for the mother’s board. He offered her a home at his own house, which she refused, and without deciding whether the evidence is sufficient to justify her in such refusal, there is no proof that any demand was made upon John for her support at any time, or any complaint that he did not provide for her.

A charge must be made of the interest on two hundred dollars from the eleventh ,of December, 1836, to the time of the widow’s death.

She was entitled to have two cows kept on the land during her life. It does not appear that this right was ever denied her. But as to the value of the cows and their keeping, the benefit of them will be denied in taking an account of the support. The amount required for such support would have been so much the less had she enjoyed the profit of the cows.

In taking the accounts, the defendants will be at liberty to prove any advances made in money or otherwise, by John for the widow’s benefit, and to proper allowance for the same.

Let an account be taken of the amounts due Gertrude, Lydia and Amanda, each, on their legacies.

The claims of Gertrude, Amanda and the widow of the testator, are entitled to priority, and then the Longstreet mortgage.

One-third of the residue must be invested for the dower right of John Arrowsmith’s (son) widow. Out of the remaining two-thirds, the costs of the attachment must first be paid; then the creditors who have come.in under the attachment pro rata, and then Lydia’s judgment. After the death of the widow of John, the principal money invested for the widow’s dower, must be distributed according to the priorities here established.

Cited in Van Duyne v. Van Duyne, 1 McCar. 53; Grode v. Van Valen, 10 C. E. Gr. 97; Blauvelt v. Van Winkle, 2 Stew. 116.


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    Robert C. Stoutenburgh v. Calvin Tompkins.
    1. A court will not decree specific performance where it would be inequitable under all the circumstances of the case. Where a contract is hard and destitute of all equity, the court will leave parties to their remedy at law.
    2. An agreement may be fully proved; it may be clear in every particular, and upon its face equal and just in all its parts ; the defendants may be unable to prove any mistake, fraud or accident in reference to its execution, and yet the conduct of the complainant may have induced such a state of things in relation ’to the subject matter of the agreement as'would make it not only proper, but the plain duty of the court to refuse its aid in enforcing its specific performance.
    3. It follows, that however closely the court may be disposed to adhere to the salutary rule of law, that parol evidence is not admissible to vary, contradict or control a written- instrument, it must necessarily exercise much more liberality in admitting evidence in order to reach the equity of the case, than would be allowed by a court of law.
    4. Courts of equity have manifested much more liberality in admitting parol evidence in cases of specific performance to resist than to enforce it. Yet the principle has never been established by authority, that such evidence is admissible, even in defence, to vary or contradict a written agreement.
    5. A defendant cannot resist a specific performance, on the ground that the agreement entered into differs from that which was reduced to writing, without showing that the difference was the result of fraud, mistake, accident or surprise.
    6. But there is a great difference between introducing parol evidence for the purpose of showing that the willing does not express the true intention of the parties, and introducing it for the purpose of showing the circumstances which make it inequitable and unconscientious, that the intention should be carried out.
    7. It is well settled that specific performance is discretionary with courts of equity, and a defendant will generally succeed in procuring a dismissal of-the bill, if he convinces the court that the exercise of the jurisdiction will be inequitable under the circumstances.
    8. One who has been in the enjoyment of property under an agreement, and has surrendered and abandoned it; who has betrayed the confidence existing between the parties, and has by his conduct and dealings witii the defendant, and his treatment of the property, beguiled the defendant into the belief that he intended to give up all his rights and interest in the contract, comes into court with a case wholly void of equity, when he demands a specific performance.
    9. A want of mutuality is an objection to a decree for a specific performance.
    10. The court will not enforce a contract where the parties are not mutually bound to fulfill it. (Authorities reviewed.)

    11. So where the interest of a party in a contract passed into the hands of his assignee in bankruptcy, all reciprocity as to the remedy was destroyed ; and if the assignee, or a person holding under him, seeks a specific performance, he must affirm the contract and make it mutual, at least within a reasonable time.
    This was a bill for the specific performance of an agreement in writing, entered into the 4th day of February, 1841, —bill filed October 10th, 1846. Hearing upon bill, answer, replication and proofs.

      W. K. McDonald and A. Whitehead, for complainant.

      J. P. Bradley and J. C. Hornblower, for defendant.
   The Chancellor.

This bill is filed to compel the specific performance of an agreement, which was entered into in writing between the defendant and one Henry Wilde, on the fourth day of February, A. x>. 1841.

By the agreement, the defendant, for the consideration of one dollar then paid, and the further sum of three thousand three hundred and forty-six dollars to be paid, for himself, his heirs, executors and administrators, agreed with the said Wilde, his heirs, executors and administrators, that the said defendant, his heirs and assigns, should and would, on the payment of the last-mentioned sum of money as thereinafter mentioned, convey and assure to the said Wilde, and to his heirs and assigns, all the four undivided one-hundredth parts of those certain tracts or parcels of land situate, lying and being in Ulster and Rockland counties, New York, the said tracts of land being intended to embrace all the real estate owned jointly by the defendant, Jotham Hedden, Ira Wan Creison, Reuben D. Baldwin and Daniel Tompkins, comprising the firm of Tompkins, Hedden & Co., and that he, the defendant, would, at the same time, sell and transfer unto the said Wilde, his heirs and assigns, twenty-four shares of the capital stock of the Newark Lime and Cement Manufacturing Company. Henry Wilde, for himself, his heirs and assigns, covenants to pay for the said land and stock, on or before the 4th of February, 1846, the sum of eight hundred and forty-six dollars, with interest at six per cent, per annum, that might accrue from the date of the agreement to the time when the said payment should be made as aforesaid, and also would, at the time the said payment should be made, (at which time the conveyance of the premises and stock should be made), execute a bond in the penal sum of five thousand dollars, conditioned .for the payments of the sum of two thousand five hundred dollars, together with such additional sum as should be equal to the interest accruing to that time, in one year from the'date thereof, with interest semi-annually, which bond should be secured by a mortgage on the premises and stock. ‘ It was further agreed that the defendant, in addition to the said land and stock aforesaid, would, at the same time, also sell and convey, for the same sum before mentioned, four undivided hundredth parts of the personal property, fixtures, accounts, notes and bills of exchange, profits, appurtenances, and other advantages which should in the meantime accrue and result from, or on account of the business, at the time of the date of the agreement carried on, and to be continued on the real estate before mentioned, and to the same extent that the said Henry Wilde would be entitled to receive, if he were an actual partner in the business conducted, going on and connected with the said real estate, to the extent of four one hundredth shares of the said business. It was. further, by the said agreement, declared to be the general intent of the parties thereto, that the said Henry Wilde should purchase the real estate and capital stock aforesaid unencumbered, and have his proportionate share in the profits of the operation then going on, and to be continued on the said real estate, and that the said defendant should receive therefor the sum of thirty-three hundred and forty-six dollars, with interest from the date of the said agreement.

On the 18th of June, 1842, about sixteen months after the date of the agreement, Wilde filed his petition in the District Court of the District for New Jersey, for the benefit of the bankrupt law; and in his schedule of property was included his interest in this agreement.

On the 12th of July, 1842, he was declared a bankrupt j and on the 16th of that month James Hewson was appointed his assignee; and the agreement, with Wilde’s other property, passed into his assignee’s hands.

On the 23d of March, 1843, the assignee sold the interest of Wilde in the agreement at public auction, and the complainant being the highest bidder, it was struck off to him at the sum of three dollars and seventy-five cents.

On the 6th of October, 1845, the assignee executed and delivered to the complainant a deed of assignment of all his right, title, and interest in the said agreement.

On the 10th of October, 1846, the bill of complaint in this suit was filed.

The defendant relies upon the general ground that it would be inequitable and unjust, under all the circumstances of the case, to compel him specifically to perform this agreement.

This is a good defence. The court will not become an instrument of injustice; and if the case presented is such that it would be unconseientious to grant the complainant the relief he seeks, and repugnant to a just sense of right between man and man, the court will refuse its aid.

“The exercise of this branch of equity jurisprudence (2 Story, § 742,) is not a matter of right in either party; but it is a matter of discretion in the court; not, indeed, of arbitrary or capricious discretion, dependent upon the mere pleasure of the judge, but of that sound and reasonable discretion which governs itself, as far as it may, by general rules and principles; but, at the same time, which withholds or grants relief, according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between parties.”

This principle is recognized by all the authorities, and very clearly by Mr. Justice Thompson, in the case of King and others v. Hamilton and others, 4 Peters 311. “ A court will

not decree specific performance, where it would be inequitable, under all the circumstances of the case. The power of a Court of Chancery to enforce a specific execution of a contract is a very valuable and important one, but it is to be exercised under the sound discretion of the court, with an eye to the substantial justice of the case. Where a contract is hard, and destitute of all equity, the court will leave parties to their remedy at law.”

An agreement may be fully proved — it may be clear in every particular, and upon its face equal and just in all its parts — the defendant may be unable to prove any mistake, fraud, or accident, in reference to its execution ; and yet the conduct of the complainant may have induced such a state of things in relation to the subject matter of the agreement as would make it not only proper, but the plain duty of the court to refuse its aid in enforcing its specific performance.

If such are the principles by which a court of equity is governed, in the exercise of this branch of its jurisdiction, it follows that, however closely the court may be disposed to adhere to the salutary rule of law — that parol evidence is not admissible to vary, contradict, or control a written instrument — it must necessarily exercise much more liberality in admitting evidence in order to reach the equity of the case, than would be allowed by a court of law. It is vain to say that a court of equity will refuse its aid to compel a party to do whao a conscientious man ought not to ask him to do, under all the circumstances of the case ; and yet, by a strict application of a principle of law, forbid his proving the circumstances which establish the hardship and inequity of the case.

The question as to the extent to which courts of equity have gone, in admitting parol evidence in cases of specific performance, was argued at much length and with great ability by the counsel in this case. It was insisted by the complainant’s counsel that, while a distinction had been drawn as to the admissibility of such evidence between cases where it was offered on behalf of the complainant, and when on that of the defendant, and much more liberality manifested in its admission to resist, than to enforce a specific performance, yet that the principle had never been established by authority, that such evidence is admissible, even in defence, to vary or contradict a written agreement. I think the counsel were right. A defendant cannot resist a specific performance on the ground that the agreement entered into differs from that which was reduced to writing, without showing that the difference was the result of fraud, mistake, accident, or surprise. The case of Legal v. Miller, 2 Ves. 299, and some others cited on the argument, do not, on careful examination, establish a contrary doctrine.

Rut there is a great difference between introducing parol evidence for the purpose of showing that the writing does not express the true intention of the parties, and in introducing it for the purpose of showing the circumstances which make it inequitable and unconscientious that the intention should be carried out. A written contract may be abandoned by parol, if not so as to destroy the rights of the parties at law, at least so far as to constitute a good defence to a bill for specific performance. So if it has been varied by a subsequent parol agreement, which has been carried out, and so acted upon by the parties that the written agreement cannot be enforced without injury to one party, it is a good ground of defence, and may be proved as such. Legal v. Miller, 2 Ves., Sr., 299; Price v. Dyer, 17 Ves. 357; 2 Johns. Ch. 216 ; Gormon v. Salisbury, 1 Vern. 240. In vol. 2, part 1, Leading Cases in Eq. 514, the principle, as deduced from a large number of authorities there cited, is said to be, that a defendant, in a bill brought to enforce a specific performance, is not exempted from the ordinary rules of evidence, nor entitled to vary a written contract by parol, without showing fraud or mistake, to justify the variation. But it is equally well settled that specific performance is discretionary with courts of equity, and a defendant will generally succeed in procuring a dismissal of the bill, if he convinces the court that the exercise of the jurisdiction will be inequitable under the circumstances.

The defendant offers to show that the circumstances of this case place him in a position in which it would be unjust and against equity to compel him specifically to perform the agreement. He offers to show the character of the property which is the subject matter of the agreement, the business relationship of the parties in connection with the property, its enjoyment by Wilde under the agreement, and then its surrender and abandonment; that while his own conduct has been honest and liberal towards Wilde in reference to the contract, Wilde voluntarily, to the great detriment of the defendant, destroyed its mutuality, betrayed the confidence existing between the parties, and that he has by his conduct and dealings with the defendant, and his treatment of the property, beguiled the defendant into the belief that he intended to give up all his rights and interest in the contract. The defendant insists that the complainant purchasing the property for the sum of three dollars and seventy-five cents, in view of all the circumstances, and then delaying for more than three years before he even gave notice to the defendant of his claim, comes into court with a case wholly void of equity.

I shall exclude all the evidence going to show an agreement by parol, independent of the written agreement, which varies or contradicts it; but all the evidence bearing upon the particulars to which I have alluded, violates no rule as to the admission of testimony, and must be examined in order to reach the equity of the case.

Let us now examine the circumstances of the transaction, in order to ascertain the equities between the parties. •

By the agreement, the defendant was to convey to .Wilde the four undivided one-hundredth parts of certain real estate owned jointly by the defendant and Elias Tompkins, Jotham Hedden, Ira Van Geisen, Reuben D. Baldwin and Daniel Tompkins, comprising the firm of Tompkins, Hedden & Company, and twenty-four shares of the capital stock of the Newark Lime and Cement Manufacturing Company.

Prior to the year 1840, the firm of Tompkins, Hedden & Co. were carrying on the business of burning, manufacturing and selling lime, cement and plaster. Their principal establishment was located at Newark, where they owned valuable property; and in addition to their property at Newark, they were the owners, of the real estate mentioned in the agreement. The property was divided into one hundred parts, of which the defendant owned thirty-five hundredths, and the other persons interested owned the residue in different proportions. In February, 1840, the Newark Lime and Cement Manufacturing Company was incorporated. The property of the firm of Tompkins, Hedden & Co., located at Newark, was converted into the capital stock of t:he corporation, at a valuation of sixty thousand dollars, so that each co-partner received six shares, or six hundred dollars in the capital stock of the corporation lor any one undivided one hundredth part owned by him in the co-partnership property. The remainder of the property and business of the firm of Tompkins, Hedden & Co., continued to be held and conducted in the same manner as was done before the act was passed. Every person interested as a partner and stockholder, was actively employed in the business of the concern, for which each received a fixed weekly allowance' in cash.

The real estate in New York was held in hundredth parts by the stockholders in the corporation, in proportion to the capital stock of the corporation respectively held by each of them. Of course any six shares in the corporation were entitled to one hundredth part in the real estate.

Prior to the execution of the agreement in controversy, Wilde was in the employment of the corporation and co-partnership, receiving a salary of six hundred dollars per annum.

He entered into an agreement with the co-pártners and the stockholders in the corporation, for the purchase of eight shares in the whole concern, which was forty-eight shares of the stock, and eight undivided hundredth parts of the real estate. Of this interest, two and one-half shares were to be furnished by the defendant, three by Wheeler, one by Baldwin, one and one-half by Ambrose Tompkins. A memorandum of this agreement was made in writing by Wilde himself. It constituted a part of the minutes of a joint meeting of the Newark Lime and Cement Manufacturing Company, and the firm of Tompkins, Hedden & Co., of which meeting Wilde acted as the clerk, and is dated January 5th, 1841. The agreement in controversy was entered into between the parties to carry out that portion of the arrangement of January 5th, 1841, which devolved upon the defendant. The defendant was to furnish two and one-half shares, but as his brother, Ambrose Tompkins, was to furnish one and one-half shares, and his shares were in the name of the defendant, who held them in trust, he bound himself to convey four hundredth parts of the real estate, and twenty-four shares of the capital stock, being equivalent to the two and one-half shares which he was to furnish, and the one and one-half shares his brother Ambrose was to furnish, under the arrangement of January 5th, 1841.

Under the arrangement of January, 1841, Wilde entered into the immediate enjoyment of his purchase. He was to receive, by a further understanding between the parties in interest and himself, the actual profits on seven shares, from January, 1840, he paying interest on. the shares valued, at the rate of $80,000 for the whole property.

That this was the understanding, is proved by a letter written and sent by Wilde to Tompkins, Hedden & Co., showing who were to furnish the shares, and when the interest of Wilde in them was to commence. It is shown, also, by the endorsement in the agreement between Wilde and the defendant. On the agreement there is endorsed, in Wilde’s handwriting, dated February 4th, 1841, a receipt for one hundred and twelve dollars principal. This receipt is open to explanation, and it is competent for the defendant to show how this money was paid. It appears that on the first of February, 1841, the company declared a dividend of twelve per cent, on their capital stock, which, on the twenty-four shares, amounted to two hundred and eighty-eight dollars. After deducting from this sum the interest of the purchase, money for the year 1840, it left the sum of one hundred and twelve dollars due Wilde, and this was endorsed as so much paid on the principal. There are two other endorsements on the agreement, both dated January 1st, 1842; one of one hundred and seventy-five dollars and fifty cents interest, and the other of one hundred and eighty-four dollars and forty-four cents for principal. On the 13th January, 1842, the company declared another dividend of fifteen per cent., which, on the twenty-four shares, amounted to three hundred and sixty dollars; of'this sum, the one hundred and seventy-five dollars endorsed was the one year’s interest on the principal then due, of three thousand two hundred and thirty-four dollars, from the date of the agreement, the balance, being one hundred and eighty-four dollars and forty-four cents, was a credit on the principal. And, further, Wilde gave up his salary of six hundred dollars a year, and received for the year 1840, and up to August, 1842, the same weekly wages which were received by the other members of the firm; and, at the joint meeting of the Newark Lime and Cement Manufacturing Company, and the firm of Tompkins, Hedden & Co., he enters himself in the minutes as one of the parties in interest, present.

Thus it satisfactorily appears that Wilde entered into an arrangement with the firm of Tompkins, Hedden & Co., to become a member of that firm, and that on the 5th of January, 1846, he made a memorandum, in writing, in the presence of the members of the co-partnership, of the interest which he was to have in it, and which of the individual members of the firm were to furnish the interest, and in what proportions; that he immediately became an active member of the firm, upon the same terms with the other individuals composing it, and actually received, for a part, at least, of his interest, the proceeds and profits. The agreement, which he entered into -in writing, in the following month, with the defendant, was a part of the agreement entered into by him with the firm, January 5th, 1841. It was executed for the very purpose, and did, by its terms, secure to Wilde, in part, the benefit of the agreement he had made with the firm. The defendant has a right to have it construed in connection with that agreement. He has bound himself to convey to Wilde a certain interest in a co-partnership, and agrees that Wilde shall have an account for four undivided hundredth parts of the personal property, fixtures, accounts, notes, bills of exchange, profits, appurtenances, and other advantages which shall accrue, or result from or on account of the business carried on by the said firm, from a certain period of time. The moment he fulfills that agreement, the firm are driven to the necessity of taking Wilde into partnership, or they must dispose and settle up their concerns, in order to ascertain Wilde’s interest. In view of these consequences, is it not competent to show that the agreement now sought to be enforced was based upon an agreement made between Wilde and the firm ? and may not the prayer of this bill be successfully resisted on the ground that to compel a specific performance iñ this case, would be hard and inequitable, in consequence of Wilde’s violating the agreement upon which the one now in question is founded ?

Suppose that, immediately after making this agreement, Wilde had abandoned the one he had entered into with the firm, would it not have been a clear fraud for him to have turned around upon the defendant and demanded of him an execution of his agreement? The complainant stands in no better situation than Wilde himself would have stood, had he filed the bill. If Wilde abandoned the agreement he made with the firm — the one he made with the defendant being based upon the former, and having been executed for the purpose of carrying it out — the defendant may successfully resist a specific performance, on the ground of such abandonment. Wilde did not carry out the agreement of January, 1841. He abandoned it, as is conclusively shown from the fact that, in making,out a schedule of his property, in his application for the benefit of the bankrupt law, he claimed no benefit under that agreement. This is shown, also, from other abundant testimony in the cause, which it is unnecessary to refer to, as the fact was not disputed on the argument. Upon this view of ■ the case, my opinion is, the complainant is not entitled to call for a specific performance.

But let us examine further, and see how the equity of the case is affected by the conduct of the complainant himself.

A want of mutuality is an objection to a decree for specific performance in this case. Let us see how far the court has carried this objection.

In the case of Hatton v. Gray, 2 Ch. ca. 164, Hatton sold houses to Gray for two thousand pounds. The note of the agreement was signed by Gray only. The solicitor said, in argument, “ The note binds not him who signed it not, for the statute of frauds and perjuries, &c., and therefore in equity cannot bind the other party, for both must be bound or neither of them, in equity.” But it was decreed contrary. Armiger v. Clarik, Bunbury’s Rep. 110. The bill was dismissed per totem curiam, chiefly upon the principle that the remedy was not mutual.

In Owen v. Davies, 1 Ves., Sr., 82, the bill was for a specific performance of an agreement with one since become a lunatic, for the sale of a reversion upon an estate for life. It is apparent, from the report of the case, that the defence insisted on was, that the remedy was not mutual, because the rights of the parties were altered on account of this change in the condition of one of the parties. The Lord Chancellor did not deny the principle contended for. He said “ It is certain that the change of the condition of a person entering into an agreement, by becoming lunatic, will not alter the rights of the parties, which will be the same as before, provided they can come at the remedy. As if the legal estate is vested in trustees, a court of equity ought to decree a performance; and the act of God should not change the rights of the parties; but if the legal estate be vested in the lunatic himself, that may prevent the remedy in equity, and leave it at law.”

In 1 Atk. 2, Stapilton v. Stapilton, the general rule was admitted. The mutuality was destroyed by the act of God. The agreement was such that both parties run this same risk. The Lord Chancellor said: “ The chance was equal, who died first, Henry or Philip.”

In 1 Schoales and Lefroy 18, Lawrenson v. Butler, Lord Chancellor Eedesdale is for adhering to the rule as to mutuality, most rigidly. He remarks in that case: It is said that courts of equity have decreed performance in cases where one party only was bound by the agreement. I believe it would be difficult to find a case where that has been done, particularly a late case. In the case of Hatton v. Gray, 2 Ch. Cas., it was considered as sufficient that the agreement should be signed by the party against whom the performance was sought, because such are the words of the statute of frauds ; now, such certainly is the import, that no agreement shall be in force but when it is signed by the party to be charged; but the statute does not say that every agreement so signed shall be enforced; the statute is in the negative. To give it this construction would, as I have heard it urged, make the statute really a statute of frauds, for it would enable any person who had procured another to sign an agreement, to make it depend on his own will and pleasure whether it should be an agreement or not.

But this dictum of Lord Redesdale, that an agreement signed by one party only cannot be enforced against that party, is not law. Since this case in Schoales & Lefroy, it has frequently been otherwise decided. The master of the rolls in 2 Jacob & Walker 428, Martin v. Mitchell, seems to think that the party who had signed had a locus peniteniice, and was at liberty to recede until the other had signed, or in some manner made it binding upon himself.

In the case of Flight v. Bolland, 4 Russ. 675, it was decided that an infant cannot sustain a suit for the specific performance of a contract, because the remedy is not mutual.

But in Clayton v. Ashdown, 2 Vin. 393, pl. 1, a specific performance made by an infant was decreed, on the ground that the infant had attained his full age, and had affirmed the contract before the bill was filed.

In the cases already referred to, where the suits were maintained or agreements signed only by one party, it was, as was remarked by the master of the rolls in 4 Bussell, first because the statute of frauds only requires the agreement to be signed by the party to be charged; and next, it is said that the plaintiff, by the act of filing the bill, has made the remedy mutual.

From a review of all the authorities it will appear to be an objection to decreeing a specific performance. That the parties are not mutually bound to fulfill it, and that the court will not enforce such a contract, when the party who is not bound by the agreement has taken an undue advantage of his position, to the injury of the other party. For instance, if an infant may make a contract mutual by affirming it after lie comes of age; if the properly is of a character subject to fluctuation in its value, the court would not allow him to speculate upon his position, and take his own time to affirm the contract. A want of diligence might, under such circumstances, be sufficient- ground for the court’s refusing its aid.

To apply the rule to the case before us. This contract is mutual in its terms, and there is a mutuality of remedy to the parties. The one agrees to sell at a fixed price, and the other covenants to give it. If either party had died, the mutuality of remedy would not have been destroyed. The representatives of the deceased party would have been bound to fulfill the contract, or if Wilde had sold and assigned his interest, Tompkins could still have enforced the agreement against Wilde. But the moment Wilde’s interest in this contract passed into the hands of his assignee in bankruptcy, all reciprocity as to the remedy was destroyed. I am not willing, however, to say that the mere fact of the mutuality being destroyed under these circumstances, the court, on that account, should refuse its aid to enforce a specific performance. Such an application of the rule might contravene the policy of the bankrupt law, by depriving the creditors of a beneficial interest in a valuable part of the bankrupt’s estate. But if the assignee, or a person holding under him, seeks a specific performance, he must affirm the contract and make it mutual, at least within a reasonable time. If he takes advantage of his position to speculate upon the opposite party, a court of equity will not encourage or aid him in such speculation. By the terms of the agreement in question, Wilde was entitled to a conveyance of the property, on his paying the consideration money, at any time on or before the 4th of February, 1846. The assignee came into the possession of the contract July 16th, 1842. He took no steps towards assuming its responsibilities, or enforcing its fulfillment, but ten months afterwards sold at public auction, all his right, title and interest in it to the complainant, for three dollars and seventy-five cents.

What was the relative situation of the complainant and defendant at this time ? Here was an agreement which the defendant could enforce against no one. It related to property from its very character fluctuating in its value. Could the complainant rest upon his oars until February, 1846; then, if, in the meantime, the property doubled in value, demand it, at his pleasure, of the defendant; or if it became valueless, be at liberty to cast it, a burthen, upon him, without any means of redress for such a wrong? And all this without any negligence or want of foresight in the defendant. The contract was made before the bankrupt law was passed, and, of course, the defendant could not anticipate, and, therefore, did not provide against such a contingency.

Would it be equitable, under such circumstances, for this court to countenance the complainant in taking advantage of his position, and in speculating upon the defendant; and more especially, when he risks only three dollars and seventy-five cents in the adventure ?

The complainant waited until the 7th of October, 1845, about four months before the time for executing the contract expired, and for more than three years after his purchase, and then formally tendered himself ready to assume its responsibilities. In the meantime the property increased some fifty per cent, in value.

My conclusion is, the bill must be dismissed, but without costs. I am induced to make the decree without costs, in consequence of the conduct of the defendant when he was called upon to perform the contract, and on account of which he is, in a measure, responsible for the institution of this suit.

Cited in Huffman v. Hummer, 3 C. E. Gr. 90; Crane v. Decamp, 6 C. E. Gr. 418.