text:
    Jacob Arnwine v. John A. Carroll.
    On a promise, by A., in consideration of receiving a deed for land from B., to pay O. a certain sum on the death of B., a suit at law seems to be the proper remedy of 0-If it be a trust, it is an express trust, and a writing showing it would be necessary.

      Semble: that if the object of B. was, to provide means for C. in such way that he could not squander them and his creditors could not reach them, C. could not enforce the payment to him; for that would defeat the grantor’s object.
    The ease made by the bill is shortly this: that Elizabeth Arnwine, the complainant’s mother, widow of John Arnwine, deceased, the complainant’s father, she being, also, the grandmother of the defendant, on the 16th of December, 1830, conveyed to the defendant a tract of land in the County of Hunter-don, for the consideration expressed in the deed of $2000. That the defendant had always lived with the said Elizabeth, and she had great confidence in him, and accordingly made him the said deed, but with the express agreement and understanding that he, the said John A. Carroll should pay to the complainant, upon and after the death of the said Elizabeth, the sum of $2000 in such sums and at such times as the complainant might require; which said promise and agreement was the only consideration for the said deed; no part of the said consideration having ever been paid by the defendant. And that, on the making of the said deed, the defendant made and executed a lease to the said Elizabeth of the premises so conveyed to him, giving her the use thereof during her natural life; and the said Elizabeth continued to reside upon the said property, and to receive the rents, issues and profits thereof, until January, 1837, when she died; and that on her death bed, and shortly before she died, the said Elizabeth called upon the said John A. Carroll to remember his promise to pay the complainant the said sum of $2000; and that the said John A. Carroll, at that time, again promised her to pay the complainant the said sum, so as aforesaid. That the said Elizabeth, by her last will, with the exception of the sum of $5 to each of her children, bequeathed and devised the whole of her property to the said John A. Carroll.
    That, after the death of. the said Elizabeth, the complainant applied to the defendant for the payment of the said sum of $2000; and that the defendant, when first so applied to, did not deny his liability to pay the same, but objected to the payment at that time because of the caveat filed against the will of the said Elizabeth, and promised payment of the same to the complainant when the will should be admitted to probate ; and that the defendant did, at divers times, furnish to the complainant grain, and pay money for the complainant, at his request, within six years prior to the filing of the bill, as part payment of and on account of the said sum to be paid by him to the complainant for and in consideration of the said conveyance by the said Elizabeth to the defendant. That the said conveyance by the said Elizabeth to the defendant was made for the purpose of securing to the complainant the said sum of $2000 for the use and support of the complainant, he being indebted to divers persons, and being of an improvident nature and disposition. That the value of the land, at the death of the said Elizabeth, was $6000.
    The defendant, in his answer, admits the deed to him ; and that the land was worth $6000 at the time of the death of the said Elizabeth ; but denies that the said deed was executed in order to secure to the complainant, for his use and support, or for any such purpose, the said $2000, or any other sum; and denies that there ever was, at any time, any understanding or agreement, express or implied, between the said Elizabeth and him, that he should pay to the complainant, in such sums and at such times as the complainant might require, or in any other manner, upon and after the death of the said Elizabeth, or at any other time, the said sum of $2000 or any other sum; and denies that any such promise or agreement was made as the consideration for the said deed.
    He denies that he took the said tract of land in trust to hold he same for the use and benefit of the complainant, to the extent of $2000, or upon any other trust to pay any sum to the complainant, or upon any trust whatever, but that he took the same absolutely in fee, to himself, his heirs and assigns forever.
    He admits that the said Elizabeth brought him up, and had great affection for him; and held him in great confidence and esteem; and admits that, at the time of the taking of the said deed, he executed a lease to the said Elizabeth for the premises, .giving her the use thereof during her natural life.; and that the ■said Elizabeth continued to reside upon the premises until her 'death, on the 16th of Janúary, 1837.
    He says, that he continued to reside with the said Elizabeth, and farmed the said premises, and took care of and supported the said Elizabeth, who was aged and infirm, until her death, and received the rents, issues and profits of the premises, except what was necessary for the support and maintenance of the said Elizabeth.
    He admits, that the said $2000 was not all paid by him to the said Elizabeth; but says, that, at the execution of the deed, he paid a small sum to the said Elizabeth, the amount of which he does not remember, as part of the consideration of said deed.
    He says, that the true consideration of the deed was the love and affection which the said Elizabeth had for him and her desire to provide for his welfare; that it was the intention of the said Elizabeth to give the said premises wholly and exclusively to, him; reserving to herself the use thereof during her life; and that, fearing that a devise thereof to him might be subject to legal difficulties and controversies, she conveyed the premises to him, and took from him a lease for her natural life. He admits that the premises, at the time of the said conveyance, were worth $4,500 ; and says, that", after the said conveyance to him, and before the death of the said Elizabeth, he erected new buildings, and repaired the old ones, and the fences, on said premises, so that they were greatly increased in value at the time of the death of the said Elizabeth.
    He denies that the said Elizabeth, on her death bed and shortly before she died, or at any other time, called upon him to remember any promise by him to pay the complainant $2000, or any other sum; and denies that at that time he again promised, or ever promised the said Elizabeth to pay the complainant the said sum, or any other sum; and denies that he, at that time or ever, agreed with or acknowledged to the said Elizabeth, that he was to pay the complainant, in consideration of the said conveyance, or for any other consideration, the said sum, or any other sum, or that he ever acknowledged any such trust reposed in him by the said Elizabeth, and agreed to execute the same.
    He admits the contents of said Elizabeth’s will as stated in the bill.
    He denies that the complainant ever applied to him for the payment of said $2000, or that he ever, tacitly or otherwise, admitted his liability to pay the same, or that he ever promised the complainant to pay the same to him, or any part thereof; and denies that he, at divers times or at any time, furnished grain or paid money to the complainant, at his request or otherwise, either within six years last past or at any other time, as part payment of and on account of the said sum of $2000.
    He says, that, to the best of his recollection, the complainant never mentioned to him that he claimed the said sum, or any other sum, from him, until lately; and that always, whenever the complainant mentioned the subject, this defendant denied all liability to pay the same or any part thereof. That the complainant never requested this defendant to pay him any grain or money as part payment, or on account of the said sum of $2000. That, about four years ago, he did let the complainant have a small quantity of grain; but it was upon an express contract, made at the time, that the complainant, in consideration thereof, would work for this defendant, the next following spring, sufficient to pay for the said grain; and that no allusion was made at that time, by either the complainant or this defendant, to the said sum of $2000.
    He denies that he ever admitted to any person, (&c., as stated in the bill.)
    He says, that the complainant, from the time of the death of the said Elizabeth, on the 16th of January, 1837, until about February 1, 1848, never claimed or demanded the said sum, or any other sum, from him, by virtue of any premise or agreement made by him to the said Elizabeth ; and, therefore, that the claim is stale, and ought to be barred by length of time. He then sets up the statute of limitations; and sets up the “ Act for the prevention of frauds and perjuries and says, that the alleged trust was never manifested or proved by any writing.
    Testimony was taken on both sides.

      W. Halsted

    for the complainant. He cited 7 Halst. Rep. 22 1 Green’s Ch. 266; 9 Miss. Rep. 605; 2 U. S. Dig. 145; 4 Ired. 390 ; 3 Munroe, 17; 1 Dessan. Rep. 289; 1 Randolph’s Rep. 165; 5 Wend. 638; 3 Story’s C. C. Rep. 181; 1 U. S. An. Dig. 287; 7 Barr’s Rep. 420; 23 Pick. Rep. 148; 1 Root’s Rep. 455; 1 Sumner’s Rep. 504; Story’s Eq. Pl., sec. 76; 5 Halst. Rep. 577; 1. Ves. and Beam, 30; 1 Kean’s Rep. 672, 683; 1 Story’s Eq. Jur., sec. 132; 2 Chitty’s Eq. Dig. 1230a; 1 Chan. Rep. 158.

      Wakefield and P. D. Vroom

    for the defendant.
   The Chancellor.

If there was a promise by Carroll, in consideration of receiving a deed for the farm from the widow, to pay the complainant a stipulated sum at her death, a suit at law would be maintainable. Such suit was brought; but the plaintiff was defeated, on the ground that he had made an assignment of all his property for the benefit of his creditors. If he has removed that objection, as, in his bill, he claims to have done, a Court of law is again open to him. There is no more reason for his coming here now than at first, except with a view of avoiding the statute of limitations, on the ground that the transaction created a trust. But it is no more a trust now than it was when the action at law was brought; and it may well be doubted whether such a promise would create a trust, to be enforced in this Court. Would the grantee hold the land in trust, if he promised, on receiving the deed, to pay a third person a stipulated sum at a future certain or uncertain time 1 Would. such promise create a charge upon the land ? But, if it would create a trust, it would be an express trust, and writing would be necessary.

If the promise was, to pay the complainant money, from time to time, as his wants might require, as I am disposed to think it was, if there was any promise at all, the bill does not seek this kind of relief; but prays a decree for the payment of the 12000.

Again, if the grantor’s object was, to provide moans for the complainant in such way that he could not squander them, and, as his counsel have argued, in such way that his creditors could not reach them, the idea that the promise should be made in such way that it could be enforced by any Court seems to be excluded; for, if any claim or right of action that could be enforced, either at law or in equity, were given to the complainant, his creditors could reach the fund arising from it.

And if it was the pleasure of the mother not to put matters in such shape that the complainant could compel any payment from Carroll, but that every thing should rest on his fidelity and discretion, I do not see that this Court should interpose. Certainly a decree for the payment of the whole sum, which is the relief prayed, would defeat the grante’s views. 2 Story’s. Eq. Jur. 1069, 1070, and notes.

It may further be said that the facts of the case as alleged by the complainant are not so satisfactorily made out as to call strongly for specific performance. The bill will be dismissed.

Order accordingly.


source: Caselaw Access Project

author: The Chancellor

license: Public Domain

text:
    Simon Brolasky v. Waters B. Miller, Joseph Ware, et al.

    B. agreed to loan to C. §2,800, on condition that C. would receive from B. §800 in goods, at prices fixed by B., and pay, or allow B. to retain, 5 per cent, or §100, on the remaining §2,000, and give to B. his bond and mortgage for §2,800, with lawful interest.
    The bond and mortgage were held to be usurious.
    Bill for foreclosure, filed September 5,1860, on a mortgage, dated May 18, 1846, given by James Clark to Simon Brolasky, to secure the payment of a bond, of the same date, given by said Clark to said Brolasky, conditioned for the payment of $2,800 in two years, with legal interest.
    The bill states, that, on the 6th of August, 1844, William A. Burk and David Winebrener, then the owners of the premises, with their wives, made and executed to Eveline Hughes a mortgage on the premises, to secure $160, for which she held the bond of the said Burk and Winebrener.
    That the said James Clark, being indebted to Peter A. Keyser and Francis B. Warner, in a bond for $1,416, dated February 5,184T, payable in one year, with interest, in order to secure the payment thereof, made and executed to the said Keyser and Warner a mortgage on the same premises.
    That, the said- James Clark being in failing circumstances', several suits were commenced against him, and judgments en-thereon, upon which executions were issued and delivered to the Sheriff of the County of Cape May, and levied upon the said mortgaged premises ; and the same were advertised for sale by the said Sheriff, and were, on the 10th of May, 1860, sold by the said Sheriff, subject to mortgage liens •, and Waters B. Miller and Joseph Ware became the purchasers thereof; and the said Sheriff executed a deed to them accordingly, and they have taken possession of the premises.
    The defendants, Miller and Ware, in their answer, deny that the bond and mortgage given by said Clark to the- complainant wore given for a bona fide and valid consideration. They say, that they have been informed and believe, and therefore charge, that the said Clark was the proprietor and keeper of a hotel or boarding house, at Cape Island; that, being in need of large sums of money with which to pay certain debts and to make the necessary preparations for the accommodation of company at the approaching bathing season, ho made application to the complainant for the loan of $3,000. That the complainant declined loaning him so large an amount; but finally agreed to loan him $2,800, on condition that the said Clark would pay to him, the complainant, $100 over and above the legal interest, as a bonus or consideration for the making of the said loan and the use of the said money, and that said Clark should receive from the complainant $800, as part of said loan, in goods, wares and merchandise, at prices to be fixed by the complainant; the balance, $1,900, to bo paid by the complainant to the said Clark in cash. And these defendants say, that the said Clark, finding that he could not procure the said loan upon more fair and just terms, and being greatly straitened in his circumstances and in want of funds, finally acceded to the demands and conditions of the complainant, and agreed to borrow said money upon the terms and conditions aforesaid, and did thereupon execute and deliver to the complainant the bond and mortgage in the bill mentioned.
    And these defendants say, that they are informed and believe, and charge, that the complainant did receive and take from the said Clark the said bonus or consideration of $100, over and above the lawful interest, for the loan of the said money, goods, wares and merchandize, and that the complainant charged the said Clark, for the goods, wares and merchandise delivered to him under the said agreement, and as part of said loan, exorbitant prices, far exceeding the current market prices at that time, and greatly beyond the true value of said goods, wares and merchandise ; and that, instead of paying to the said Clark the balance of said loan, to wit, $1,900, in cash, as had been- agreed upon between them, the complainant required the said Clark to take, in lieu thereof, certain promissory notes for that amount, payable at periods long subsequent to the dates thereof, and thus subjecting the said Clark to further loss upon the said loan. And these defendants submit, that, for the reasons above stated, the said bond and mortgage are usurious and utterly void, under the statute in such case made and provided.
    These defendants further say, that the bond and mortgage, mentioned in the bill, given by Burk and Winebrener to Eveline Hughes, were, by the said Eveline, for a good and valuable consideration, assigned and transferred to this defendant Waters B. Miller; and that the said bond and mortgage, in the bill mentioned, given by the said Clark to the said Keyser and Warner were, by the said Keyser and Warner, on the 1st November, 1850, in consideration of $1,416 paid to them by these defendants, assigned and transferred to these defendants.
    They admit they bought the premises at the Sheriff’s sale; but aver that they did so under the opinion and belief that the complainant’s said mortgage was illegal and void; and they say, that the Sheriff did not at the time of said sale, so far as they heard or believe, make any stipulation, reservation or allusion to the said mortgage of the complainant, or any incumbrance whatever, upon the premises. And they deny that they purchased the said premises under the express condition that they would pay off the complainant’s pretended claim, or any other claim.
    They say they are not informed, and do not know, whether the said Keyser and Warner, at the time they received the mortgage so made to them, had any knowledge or information of the complainant’s mortgage.
    Replication.

      James Clarlc,
    one of the defendants for the above entitled case, (against whom a decree jpro confesso had been entered, and who is examined by virtue of an order of this Court, a copy of which is annexed to these depositions,) being produced upon the part of the other defendants and duly sworn according to law, doth depose and say. At the time I wanted some money I incidentally mentioned it to Mr. William Burk, of Philadelphia, and lie proposed to negotiate a loan for me. I wanted $3,000. Question by defendant’s counsel. Did you give Mr. Burk any instructions as to the amount he might pay for this loan 1 (Any conversation between the witness and Mr. Burk objected to by the solicitor of the complainant.) Answer. Mr. Burk some time afterwards came to me and said he could procure for me a loan of $2,800, provided I would be willing to pay a bonus of $100 for the money. He said Mr. Brolasky, the complainant, would let him have the money provided I would pay a bonus of $100. I told him I wanted the money pretty badly and must have it, and instructed him to get it on those terms. Mr. Burk procured the amount I required and there were some transactions between him and me and he paid me over the balance of the $2,800, after taking out the amount duo to him. Mr. Burk held the bonds and mortgages, one to himself for $800, the other to John Flanagin and Son for $600. I am not certain whether there were mortgages accompanying the bonds or not. Mr. Burk sold these mortgages, I presume, to Mr. Brolasky. The whole amount, including what I owed Mr. Burk and what I got, was $1,900. I am not enabled to say the exact amount in cash I got from Mr. Burk. I got some dry goods of Mr. Burk and then I purchased a lot of him adjoining my other property. I allowed him $600 for the lot. I got some dry goods from Burk (the amount I don’t remember) previous to the loan, and some after the loan, all of which were taken out of the money I got of Mr. Brolasky. I gave three different papers to Mr. Brolasky a few days since, and among them was one bill, T think, of dry goods. The balance of the $2,700 I got in dry goods from M. Brolasky. When I borrowed the money the agreement was that I was to take $800 out in dry goods. $2,700 made up in this way was the whole amount I received, and for this sum I gave the mortgage of $2,800. Mr. Burk did all the bargaining for me and I signed the bond and mortgage. It was a voluntary thing upon the part of Mr. Burk. I have paid Mr. Brolasky interest upon this bond and mortgage — paid interest upon the whole amount of $2,800. I have receipts which show the amount of interest I have paid — about $600. A paper writing purporting to be a receipt on account of interest for $115, dated August 2d, A. D. 1847, and signed by S. Brolasky, is offered in evidence and marked Exhibit No. 1, ex parte defendants. A paper purporting to be a receipt dated August 5tb, 1848, for $144.75, being shown witness, he says part of this receipt was for interest. A carriage for $85 was to come out of it — also a tongue for $10, and two lots of carpeting, which, ac-according to my impression, cost $40. The balance of the receipt was for interest. This receipt is offered in evidence, and is marked Exhibit No. 2 ex parte defendants. A paper purporting to be a receipt, dated August 11th, for $42 for interest, bill of $10.72, leaving the amount of $81.28, and signed by Simon Brolasky, is offered in evidence and marked Exhibit No. 3, ex parte defendants. Also a receipt dated August 30th, A. D. 1849, for $60 for interest from James Clark, and signed by Simon Brolasky, marked Exhibit No. 4, ex parte defendants. A paper purporting to be in part a receipt, dated August 13th, A. D. 1849 for $41.83 for interest and signed by S. Brolasky, is offered in evidence and marked Exhibit No. 5, ex parte defendants. A paper writing purporting to be a note for $127.65, made by James Clark to Simon Brolasky, and dated July 7th, A. D. 1846, being shown to witness, he says this note was given by me for a balance of interest on this mortgage. This paper is offered in evidence, and is marked Exhibit No. 6, ex parte defendants. A paper purporting to be a due bill from James Clark to Simon Brolasky, for $36.65, and dated August 5th, A. D. 1848, is offered in evidence, and is marked Exhibit No. 7 ex parte defendants. This receipt being shown witness, he says I can’t say whether it was for interest or not. We had other transactions — it may be or it may not. The other receipts I am pretty positive were for interest. I have had a conversation with Mr. Brolasky in regard to this transaction recently. Mr. Brolasky stopped in here day before yesterday. He spoke of Mr. Burk and his transaction. He said Mr. Burk was a curious kind of a man and he could not make out what kind of a man he was. He Said something about having my affidavit taken in this case, and I told him I understood the time appointed was for the 81st of July. He did not ask me what I would swear to. That was about all, as near as I can recollect. Wo have conversed upon the subject several times previous to day before yesterday. Inihese prior conversations the substance of them was pretty much the samo as in the last. Mr. Brolasky said he hoped I would not do anything to injure him. I told him I did not want to injure any man if I could avoid it, but if I was called upon to give evidence I must tell what I knew. His son Henry was with him upon one or two occasions when he called, and Mr. Richard P. Thompson was with him upon one occasion. When I told him I did not want to do anything to injure him I don’t recollect whether he replied to it or not. He did not offer me any money, but made a proposition to me, the amount of which Was, that if I could give my influence in his favor in the case he would give me $100. No one was by when he made this proposition to me. He made this proposition to mo I think about three or four weeks since. It was at the samo time Mr. Brolasky said ho hoped I would not do anything to injure him, and he repeated this several times. It was a matter that I thought would never bo called up, as I had no interest in it whatever. Mr. Brolasky never exacted from mo a promise that I would not tell something connected with the matter. He did in relation to some other matter. It had some connection with this matter, but not In the shape of borrowing money. It was in relation to a receipt for interest which Mr. Brolasky cancelled. I gave him a hill for some goods he got. The receipt Mr. Brolasky signed for $172 was a receipt given me by him for interest on this bond and mortgage. The receipt was for $172, and the bill was for $111. Deduct the hill from the receipt and it left a balance of $81, for which Mr. Brolasky gave mo a due hill. The bill of $141 was given for goods purchased by Mr. Brolasky at my sale of household goods. Mr. Brolasky purchased at the Sheriff’s sale $141 worth of goods for me. He paid the Sheriff and I kept the goods and became his debtor for the amount, and this bill was deducted from the amount of the receipt of $172 which had been previously given by Mr. Brolasky to me for interest. Mr. Brolasky destroyed the receipt of $172 when I gave it to him, and requested me to say nothing about it.
    Being cress-examined upon the part of the complainant, said: I gave a bond and mortgage to Mr. Burk for $800. I think it was in the year 1845. I gave a bond and mortgage to John Flanagin for $600 about the same time. These mortgages Mr. Burk had the control of previous to the negotiation of the new loan from Mr. Brolasky. I presume Mr. Burk sold these mortgages to Mr. Brolasky, because Mr. Brolasky has the mortgage in his possession, and showed me the receipt. This is the only reason I have for thinking so. The only reason I have of knowing what Mr. Burk got for the two mortgages was from seeing the receipts on the back of them. Mr. Brolasky said he paid Mr. Burk $1,300 for the two mortgages. Mr. Burk never told me he had sold the mortgages to Mr. Brolasky or what he had got for them. I don’t recollect whether I paid any interest to Mr. Burk and Mr. Flanagin on those bonds and mortgages. I owed Mr. Burk for goods he had previously let me have. I think I may have owed Mr. Burk in the neighborhood of $60 at the time he negotiated the loan with Mr. Brolasky. I got $800 and upwards in store goods. Mr. Brolasky has a paper containing a statement made out by himself, of the exact amount handed to him' by me, and which he promised to return to me. I got also from Mr. Burk a lot for which I paid him $600. In all the negotiations for the loan, Mr. Burk made all the agreements and done all the bargaining. I never had anything to do with Mr. Brolasky about the negotiation or about the bonus. I never made any agreement with Mr. Brolasky that I would pay him $100 as a bonus for the loan. I never applied to Mr. Brolasky to make me a loan of money. Mr. Burk, I don’t think, has ever applied to me for payment of his bond and mortgage against me previous to negotiating the loan of Mr. Brolasky. When Mr. Burk and I settled, after he had negotiated the loan of Mr. Brolasky, he deducted a bonus of $100, which I allowed him. I think Mr. Burk did not pay me my money. When the bond and mortgage was executed I think my wife was present, and Mr. Brognard. 1 think no one else was present. It was done up at the Court House. Mr. Brognard is dead I believe. I have had a conversation with Messrs. Miller & Ware in regard to my chances in the property in dispute in case they get clear of the mortgage. Not in regard to my chances but in relation to the sale of the property. Messrs. Miller & Ware have called upon me twice I think and stated that my affidavit was required in order that I should be heard in Court. Nothing was said about my having an ultimate interest in the property, for that I don’t expect to have, neither do they expect me to have. I was not present at the sheriff’s sale when the real estate was sold. I considered the property known as the Washington House to be worth §6,000 or §7,000 when I owned it. When I owned it I owed a mortgage to Messrs. Keyser & Warner for $1,300 and some arrears of interest. I think there were no other mortgages upon it at the time of the sale but this mortgage and the Brolasky mortgage. The note marked Exhibit JVo. 6 was given for a balance of interest. I am positive. The Brolasky mortgage was given in May, 1846. A bond and mortgage, marked Exhibits A and 7?, ex parte complainants, are the bond and mortgage I gaye Mr. Brolasky. They are dated May 18th, 1846. 1 did not owe Mr. Brolasky anything but for interest, except what I have stated. Question by the solicitor of the complainant. What did you owe Mr. Brolasky for besides interest 1 Answer. I owed him for a wagon and a tongue; when I purchased the wagon I supposed the tongue went with it. Mr. Brolasky sent it from Philadelphia two or three weeks after I purchased the wagon, and for the tongue ho charged me $10 extra. I owed him for carpeting, but the number of yards Í don’t recollect, but Mr. Brolasky has the number of yards and the price, and that will instruct us upon that head. The carriage was to have been §85. I never had any transaction with Mr. Tompkins in regard to goods bought at the sheriff’s sale over and above those embraced in the bill of §141.
    Being re-examined upon the part of the defendant, said: I learnt since the sale there was a mortgage at the time of the sale upon the property, held by Eveline Hughes, the exact, amount I don’t recollect. I think the carriage was taken out of the receipt marked Exhibit JVb. 2. I ratified and confirmed the bargain which Mr. Burk made for me in regard to the bonus of $100 for the negotiation of the loan by Mr. Brolasky. In consequence of the bargain for the bonus of $100, I allowed it in my settlement with Mr. Burk.

      William A. Burk,
    a witness produced upon the part of the defendants, being duly sworn according to law, doth depose and say: I am acquainted with Simon Brolasky, of Philadelphia, and with James Clark, of Cape May. Mr. Clark, some time in the year 1846, applied to me to negotiate a loan for him. I negotiated a loan for him at that time with Mr. Simon Brolasky. Mr. Clark wanted $3,000 on his property. Mr. Brolasky did not decide immediately, but went down to Cape May to look at the property. After he returned from Cape May he sent me a note or called at m'y office to say he wanted me to come up and see him. I went up to his house and saw him, and had some conversation with him about it. He concluded he’ would let Mr. Clark have $2,800 on the property at Cape May. His proposition was to give Mr. Clark $800 worth of goods, and he would give $2,000; then he mentioned a discount of five per cent, upon the $2,000. Nothing was said about a discount upon the goods. I wrote to Mr. Clark and mentioned that to him ; he authorized me to accede to these terms and to see Mr. Brolasky, and tell him Mr. Clark would be up in a short time. I .completed all the arrangements except the goods, and Mr. Clark selected the goods. I received two notes of Mr. Brolasky, one for $800 and one for $500, and they had thirty days to run. They were Mr. Brolasky’s own notes. The balance was paid by a note of longer date for $500 and upwards. I looked over my papers and found no memorandum of the amount. It strikes me it was $216. I hare no recollection of receiving anything-but these notes to make up the balance of the $2,000. I can’t recollect whether I delivered the mortgage to Mr. Brolasky. I pan’t answer whether the mortgage was delivered before the notes were given. Mr. Brognard drew up the papers between the parties. Mr. Brognard is dead. The mortgage of f>2,000 was given upon a house at Cape Island, occupied for some time by'Mr. Clark, called the Washington House. I can’t recollect the dates of those notes. I made no memorandum of them; they were drawn at so short a date. Mr. Clark came up and selected a part of the goods before the notes were given. I have no recollection how that matter was settled. I settled with Mr. Clark this mortgage affair, including my own account with him. To the best of my recollection Mr. Brolasky gave me those three notes for Mr. Clark, and the money was coming to me and others. In my settlement with Mr. Clark I did not allow him any more than the proceeds of those three notes. At the time I settled with Mr. Clark I told him the proceeds of those three notes was all I received of the $2,000 of Mr. Brolasky. At the time Mr. Brolasky asked me the five por cent. I told Mr. Clark, and he acceded to it, and authorized me to pay the §100.
    Being cross-examined upon the part of the complainant, said: There are several other things in relation to the payment of the money, which I have not stated. Messrs. Burke & Winebrener held a mortgage of §800 against Mr. Clark. To the best of my recollection, those two notes, of $800 and $500, given to mo by Mr. Brolasky, were to be applied to the payment of Messrs. Burke & Winebronor’s mortgage, and one held by Flanagin & Sons. I don’t remember the amount of Flanagin’s mortgage. I had not the control of Flanagin’s mortgage, and I have no recollection of it. I have no recollection of having possession of Flanagin’s mortgage. I went down to Mr. Flanagin’s several times, and requested him to let me have the mortgage, and to the best of my recollection ho would not trust me with anything. I have no recollection of going to Mr. Flanagin’s store after the bond and mortgage he held against James Clark. I went repeatedly to Mr. Flanagin’s store and told him I was trying to make arrangements to get our money for our mortgages. I mean by our mortgages the mortgages of Burke & Winebrener and of Flanagin. I hare no recollection that Mr. Flanagin handed m® the mortgage; he might hate don® so. To the best of my recollection I told Mr. Flanagin I should charge something for going down to the Court House and attending to the business. I went down to Cape May Court House. Mr. Brognard was there with the papers. Mr. Brolasky was not there. Mr. Flanagin was not there, nor either of his sons. I can’t tell you what was done there. We went down to attend to this business. Mr. Brognard attonded to the business. Mr. Clark, Mr. Brognard and myself. It seems in my mind we went to the Clerk’s Office. I can’t recollect whether we had the old mortgages canceled at that time. I have no recollection of having anything to do with the new mortgage. I don’t think it was during the term of Court. I really can’t recollect one single act of business that was done there that day. I don’t remember getting Samuel M. Clement, a Commissioner in Philadelphia, to draw any paper connected with these mortgages. Exhibit C being shown witness, he says : the signature of William A. Burk, attached thereto, is my signature, and the name of David Winebrener is Mr. Winebrener’s signature. The writing on the back of it, signed John Flanagin & Sons, I have no recollection of. I had forgotten all about this paper. I don’t recollect where that paper was executed. I did not know there was such a man as Samuel M. Clement, at all. I have no recollection I ever agreed with Mr. Brolasky to have Flanagin’s mortgage assigned if required. I have no positive recollection how these two notes of $800 and $500 were applied. I have no recollection of either of them being applied to the payment of Mr. Flanagin’s mortgage or not. I can’t answer whether Flanagin’s mortgage was ever paid. I can only say Mr. Brolasky was to have those mortgages cancelled. Question by complainant’s solicitor. Did you not go to John Flanagin & Sons’, in the year 1846, and give them the cheek of Johnson Burk & Co. for the amount of Flanagin’s mortgage, deducting five per cent. 1 Answer. I have no recollection of going there and giving them our check. Exhibit D being shown witness, he says the signature is mine but the body is not. I don’t know whose handwriting it is. I suppose, upon looking at this paper, I paid the money to Mr. Flanagin herein mentioned. The money I received from Mr. Brolasky was appropriated to pay different individuals. I recollect paying Mr. Keyser $200. He had some claim on the property. The next I presume, went to pay Burk & Winebrener and Flanagin. Exhibit D, the receipt, was true when I signed it and I have no knowledge to the contrary but what it is correct. I can’t say what was the amount of Flanagin’s mortgage, I have no recollection of telling Miss Mary Howell that Burke & Winebrener’s mortgage amounted to $800, Flanagin’s mortgage to $600, and that I had sold them to Mr. Brolasky for $1,300. I have no recollection of ever saying to ^Henry Brolasky that I had sold these mortgages for $1,300; that it was a fair transaction and that there was no usury about it, or words to that effect. I remember meeting Mr. Brolasky’s son on the street at Capo Island, and asking him for receipt marked Exhibit D, that I might show it to Joseph Ware, one of the defendants. He got the receipt and showed it to Mr. Ware in my presence. I might have told Henry Brolasky, and I think it likely I did tell him; I had forgotten I had given the receipt, for I had forgotten all about this. I have no recollection of telling Henry Brolasky upon that occasion that the discount of the $100 was taken out of these two mortgages. I don’t recollect why I wanted to show this receipt marked Exhibit D to Mr. Ware. It came up in some conversation. I have no recollection of saying to Henry Brolasky when I called upon him to get that receipt, that it was a fair transaction and that if I could show that receipt and explain it to Miller & Ware I thought they would pay the money. I recollect going to Mr. Brolasky’s cottage in Cape May, in the month of July, 1851, but whether at night or during the day I can’t tell. I then had a conversation with him about these mortgages. I don’t recollect any one being present. I think Mr. Brolasky called me out upon the piazza, and we sat down there and talked about it. I don’t recollect what was said there. My principal object in going was to get a compromise. Mr. Brolasky had called upon me and asked me to come over there. Our conversation was principally about a compromise. I don’t recollect telling Mr. Brolasky what Miller & Ware would give to compromise. I can’t answer whether I told Mr. Brolasky in that •conversation Miller would give $2,800, or whether Ware was willing to give $3,000. Ware seemed anxious to have a compromise, but Miller would not consent to it. I could not have •told this to Mr. Brolasky in that conversation upon the piazza. I had no conversation with Miller & Ware about a compromise •until after I had seen Mr. Brolasky. I had talked with Mr. Brolasky at other times, but I can’t say that [ ever had any other conversation upon the piazza or not. I have no recollection in that conversation on the piazza of saying in the presence of Miss Howell that the bonus of $100 was allowed on the sale of the two old mortgages and taken out of that sale. I don’t recollect going to Mr. Brolasky’s house in Philadelphia, and then offering him those two mortgages for sale. I have been to his house but I don’t recollect talking to him about any mortgage but the last mortgage of $2,800 on the Washington House. I have no recollection when at his house of talking to him about any other mortgage but that. I don’t remember going to Mr. Brolasky’s house in Philadelphia and asking Miss Howell about the price of the goods Clark got of Mr. Brolasky. I went in the room where the goods were at the time Mr. Clark went to look at them. I might have looked casually at them, but did not examine them separately. There appeared to be a large number of goods. I have no recollection of saying they were cheap or dear. I left that to Mr. Brolasky and Mr. Clark. I mentioned at Cape May in conversation with Mr. Brolasky, at what place I don’t recollect, something about a man’s giving a carriage and horses to get a loan of money. I don’t recollect of saying, but I might have said, in the presence of Miss Mary Howell at Cape May, that Miller wanted to get off like a man in East Jersey, who gave a carriage for the loan of money, but this was a different case, that I had the control of the old mortgages, and had a right to sell them for what I pleased. Question by the solicitor of the complainant. Did you ever tell Mr. Brolasky that Miller told you that the Washington House rented for $600, and that Miller & Ware meant to law Brolasky for five or six years, and keep him out of his money — that it would cost him and Ware nothing ? Answer. There was some conversation to that effect, but I can’t exactly remember what the words were. I am acquainted with Jefferson Brolasky. I have no recollection of having a conversation with him but once about these transactions. It was on board of the steamboat on the Delaware. I think he said ho was on his way to the Falls of Niagara. I have no recollection what the particular conversation was. He said his brother was Very ill, and he wanted me to go up and see him. I have no recollection of telling him in that conversation tho transaction was fair and honest, and there was no usury about it. I I have no recollection telling him I had the control of these two mortgages, and that I had sold them to his brother for $1,300. I don’t recollect his asking me if the discount of $100 was taken out of the old mortgage or the new mortgage. 1 have no recollection of our conversation in particular upon that day. I don’t recollect telling him I had offered these two mortgage for sale at tho exchange before I had offered them to Mr. Brolasky. I have no recollection of telling Mr. Jefferson Brolasky in that conversation that I took the $100 discount out of the two old mortgages, and that it had xxothing to do with the new mortgage. Question by complainant’s solicitor. Did you ever offer those old mortgages for sale before you offered them for sale to Mr. Brolasky ? (Question objected to by defendant’s counsel, because it assumes the fact that witness did offer the mortgages for sale to Mr. Brolasky, when there has been no proof of that fact already given in evidence.) Jlnswer. I have no recollection of ever offering them for sale to anybody. I never placed these old bonds and mortgages in the hands of a broker to sell for me. I don’t recollect whether I ever authorized a broker to part with those bonds for me. It must have been in Philadelphia that Mr. Brolasky gave me his two notes of $800 and $500. I don’t recollect what I gave him in return for his notes, or whether I gave him anything or not. I can’t tell when I gave him Burk & Winebrener’s mortgage. Two papers being shown witness, which are offered in evidence ex parte complainant, and marked Exhibit E and F, he says : Exhibit E is Clark’s bond, and the signature thereto is his signature. Exhibit F is the accompanying mortgage. I can’t remember whether I ever saw the bond and mortgage to Flanagin & Sons. A paper being produced and shown witness, marked Exhibit G, ex parte complainant, he says : I have no doubt that is Clark’s bond, and the signature of James Clark is his. A paper produced and shown witness, marked Exhibit H, ex parte complainant, he says it is the accompanying mortgage. The settlement I had with Mr. Clark, and to which I referred in my examination-in-chief, occurred at. his house at Cape Island. I don’t recollect any one being by when we settled. Clark and I had several settlements. We settled that with all other matters at the same time. I can’t say when the settlement took place; whether the same year the mortgage was given or not. Mr. Clark bought the Washington House of Burk & Winebrener first; afterwards I sold bim a lot adjoining it, and I got in the neighborhood of $500 for it. He Owed me that day for this lot, and I think he owed the firm of' Johnson, Burk & Co. for dry goods. He owed me some little-on furniture; I can’t tell how much. I have no books, no memorandum, no way of coming at it. I have no recollection of having the new mortgage at all, at any time. I don’t recollect whether I had the old mortgage there that day. Mr. Brolasky was not there at that settlement. I have no recollection of having any bills or receipts from Mr. Brolasky there that day. I had a statement of the money received of Mr. Brolasky there. I can’t tell whether I had or not, there that day, a written statement of the amount of debt and interest due on that day on the old bonds and mortgages. I don’t recollect having any money there that day. We settled the amount of money I received from Mr. Brolasky. There was a note of hand of $500 or $600 I had against Clark, settled. There was also a book account-due Johnson, Burk & Co. Mr. Clark allowed $100 for the bonus in' our settlement. Mr. Brolasky claimed $100, and I settled it in that way. The goods got by Mr. Clark of Mr. Brolasky, were left at my store by Brolasky. Mr. Brolasky told me at his house when I went up in the morning, that he would send the goods to my store, and I could send them down to the vessel to go to Cape May. Question by the solicitor of the ■ complainant. Did ¡you not stand in a stealthy manner at the corner of Clover and Thirteenth streets, and watch the goods when they were sent from Mr. Brolasky’s house, and stop the drayman on his way down, and direct the goods sent to your store? (Question objected to as irrelevant, by the defendant’s counsel.) Answer. I did not. I went to Mr. Brolasky’s yard boldly, and saw them loading the goods. I had a claim of §516 against Mr. Clark, and Mr. Brolasky gave me his note to pay the balance on this mortgage that I speak of. Mr. Brolasky had never paid but $1,300 upon the mortgage. Mr. Clark owed me the $516 for a piece of property he bought of me at the time the goods came to the store — for that I held his note. I don’t say it was exactly for §516. That note was paid me by Mr. Brolasky’s giving me his note, that canceled so much of the money due from Clark to me, let it be whatever amount it was. I sent the goods down to the vessel the next day, long before Mr. Brolasky gave me that note for $516. The vessel took one case of hats, but was so fully loaded they could not take any-ting more. I charged Mr. Flanagin $25 for my services. I think Mr. Flanagin called upon me afterwards, and found fault with what I had charged him. Question by the solicitor of complainant. What took place at that interview ? (Question objected to by defendant’s counsel as irrelevant.) Answer. He thought I should not have charged him that $25 for the trouble I had taken to get the money for him. Question by Mr. Thompson. Did he not upon that occasion, say to you that you had represented this was to be for the benefit of Mr. Clark, and that you had been keeping the money for yourself? (Question objected to by Mr. Halsted as irrelevant.) Answer. I did not. Flanagin was as anxious to get the money as I was. I don’t remember whether there was any insurance allowed by Mr. Brolasky. I think I gave Mr. Brognard $10, which was put in the settlement with Clark. I don’t remember my expenses being allowed for going to the Court House. I went down to Cape May myself. I don’t know how long the goods remained at my store. They were at my store when I went down to Cape May, and I believe they were sent down by the first vessel that could carry them. Mr. Brolasky was at Cape May when I got there. I never said a word to Mr. Clark that he must pay the $516 before the goods were sent. Mr. Brolasky did not pay for these goods. That $516 was the balance on the mortgage. Mr. Brolasky paid that $516, because he owed it on the mortgage. Question by the solicitor of the complainant. Why did Mr. Brolasky pay the debt of Mr. Clark ? Answer. I can’t answer it in any other way than because that was due upon'the mortgage. I acted as agent for Mr. Clark, and I was to receive the whole of the money. Question by the solicitor of the complainant. Did not Mr. James Clark come to you and ask you why those goods were detained in Philadelphia. Answer by the witness. He might have done so. He probably did, but I have no recollection about it. The note of $516 given to me by Mr. Brolasky was drawn, I think, at Cape Island. I was then keeping house at Cape Island. I saw the goods while I was there. I don’t recollect whether I saw the goods at Cape Island before or after I got the note of Mr. Brolasky. I remember being at Mr. Brolasky’s house on the afternoon of one day this week. I understood he had. been at my store, and said he wished to see me. I went up and saw him. I don’t recollect any one being in the room.' Question. Did not Brolasky, upon that occasion, complain that it was upon your information to Mr. Howell that this trouble had been made'for him. (Question objected to as irrelevant.) Answer. No. Question. Did you not upon that occasion declare to Mr. Brolasky, that you had never been to any lawyer, or given any information in relation to this business ? (Question objected to as irrelevant.) Answer. I think I said I had not until this was brought in suit. I was not present at the sale of the Washington House. Mr. Miller said he had bought the property, and had bought it very cheap.

      Jefferson H. Brolasky,

    a witness produced upon the part of the complainant, being duly sworn according to law, doth depose and say: I am about 42 years of age. I had a conversation with William A. Burk on the 25th June, 1851, on board a steamboat or railway car between Philadelphia and New York. Mr. Burk told me he had sold the mortgages to my brother for $1,300, the mortgages of James Clark upon the Cape May property ; that he allowed my brother a discount of $100 on these mortgages. The two mortgages were the mortgages of Flanagin and of Burk 8," Winebrenner; and they amounted to $1,400; and it was upon these mortgages, he said, he had allowed my brother a discount of $100. He added it was a fair business transaction, and that Clark giving information to the purchaser made all the trouble. Ho said nothing at that time about a new mortgage, nor has he ever said anything about a new mortgage to me.

      Mary Howell,
    a witness produced upon the part of the complainant, being duly sworn according to law, doth depose and say : I reside in the city of Philadelphia. I am fifty years of age. I was present in Philadelphia at Mr. Brolasky’s house when William A. Burk called and offered the mortgages to Mr. Brolasky for sale. There were two to the amount of $1,400. Ono was for $800, the other for $000. The ono of $800 was given to Burk Winebrenner, the other of $600 to Flanagin & Sons. Ho offered the two for $1,300. Ho said he wanted to raise money very badly, and did not wish to mortgage his house. My brother replied that those two mortgages had been offered to him by .Robert Smethers at $1,300, and he refused to buy them. He persuaded Mr. Brolasky, after some conversation, to take them at the $1,300. He was to have the papers fixed and Mr. Brolasky was to call upon him and get them. This must have occurred about the year 1846. I know it was a short time after we closed business. I mean my brother-in-law, who had shortly before ceased keeping store. I assisted him in his store, and was with him 21 years. I mean by my brother-in-law the complainant in this cause. In the summer of 1851, at Capo May, I again saw Mr. Burk at Mr. Brolasky’s cottage. Mr. Brolasky and Mr. Burk were setting on the porch. Mr. Burk sent for me to come to him ; he wished to ask me a question concerning a quantity of domestic goods that Mr. Brolasky had bought for Mr. Clark. He asked mo also if Mr. Brolasky did not go from home to purchase those goods — that Mr. Ware and Mr. Miller wanted him to say that he did not know anything about it. He said he had been nearly the whole morning with Mr. Ware, and Ware wished to pay Mr. Brolasky $8,000. That he (Ware) was sorry he ever had anything to do with it, and would be glad to sell his share to get rid of it. Then he referred to Mr. Miller and said he had never met such a dishonorable and dishonest man to deal with. That he (Miller) would not pay the mortgage unless there was a very heavy discount allowed him. Upon that occasion he (Burk) spoke again of the two mortgages, and said he offered them and sold them for the $1,300, and he had a right, they were his own, to sell them for $500 if he chose. He then said Mr. Miller had said the last year he had received $600 rent and would the next year, and showed how Mr. Brolasky with the rent for five or six years for it would cost him nothing. After the above conversation and on the evening before Burk left Cape May the past summer of 1851, he came to Mr. Brolasky’s cottage at half-past ten in the evening and said that Mr. Ware offered to give $3,000 to pay the mortgage; that Mr. Miller was very stubborn and did not want to give but $2,800. Mr. Brolasky said he did not care anything about it and they parted. In the conversation I heard on the piazza I remember Mr. Burk said that Miller had an idea of getting clear of these mortgages like a man in Trenton or East Jersey, who borrowed money and gave a pair of horses and carriages to get it and lost it, but his was a different transaction ,• he had sold his mortgages for what he pleased and got the money for them. Upon that occasion Mr. Brolasky complained that Mr. Burk had been endeavoring to make the impression on Mr. Miller that the $100 came out of the $2,800 mortgage, and Mr. Burk said it did not come out of that mortgage, but out of the two mortgages he sold. This conversation occurred when Mr. Brolasky and Burk were out on the piazza. And then my brother said why don’t you state the whole truth to Mr. Miller and it may be settled or compromised. After that it was that Mr. Burk came to the cottage and said what Miller & Ware would settle it for. A fter Mr. Brolasky quit business he had a stock of goods left, w hich he took home to his house to sell by hand rather than expose them by auction. Mr. Clark purchased some of th ese goods. Mr. Burk previously came there and examined them. Afterwards he and Mr. Clark came together. Mr. Clark took of those goods all that would suit him, and then requested Mr. Brolasky to purchase for him some heavy domestic goods that he had not. Mr. Brolasky went out with a memorandum furnished by Clark and bought what Clark wanted. The whole amount of goods furnished to Mr. Clark was about $800. I had charge and showed Mr. Clark the goods. Those goods were sold under market price — some of them less than they cost. We were selling all our goods in that way to save sending them to auction. Mr. Burk said they were checked, and any man who knew how to sell them could make money by buying them. After the goods were packed Mr. Burk came up with a memorandum how the goods were to be marked, and where they were to go. They were to be sent down to the wharf to go on board a shallop to Cap oMay for Mr. Clark. The goods were started next morning. The drayman was loading the goods and I observed Mr. Burk standing behind the corner of St. John’s Church, in 13th street, apparently watching these goods. He waited there and did not come to the house. His manner had the appearance of his being there secretly to watch these goods. He remained there until the drayman passed the corner and he went to the drayman and turned the drayman up 13th street, instead of going down 13th street. I went to the corner and watched him until they got to Market street and he turned down Market. Mr. Burk’s store was at that time on Market street. I ordered the drayman to take the goods to the address on the card, which was to a shallop at the wharf to go to Cape May. I do not know the drayman nor his name. I know Mr. Burk detained those goods at his store, and he said he did so because Mr. Clark owed him money. Mr. Clark came up and came to our house to see why the goods had not come down. I told him the goods had been sent. I know that my brother gave his note to Mr. Burk for between 0500 and $600 to pay Clark’s debt to Burk before Burk would let these goods go. This day two weeks ago Mr. Burk called at my brother’s house in Walnut street, Philadelphia. He enquired for Mr. Brolasky; he not being in he sent for any member of the family who could see him, and I went down. While waiting for Mr. Brolasky’s return he said he had been notified to attend at Camden as a witness in this cause. After a good deal of other conversation he remarked that he did not see why they should meddle with his business •, that these old mortgages were in his hands to do what he pleased with them, and that he had sold them, and it was nobody’s business ; that a man who had notes or bonds had a right to sell them for what he pleased. He spoke of Clark and said he would not believe him on his oath. I said to him I am surprised to hear you say so, for I understand you have given the information that has led to this trouble. He then said that any body that had told he had been giving information or had been examined by any lawyer or before any Court told a bare-faced falsehood. I asked him if he had not been over to Camden to be examined. He said if he had to die he had never been. Soon after Mr. Brolasky returned Mr.’ Burk said to him I have called to say I have to go to Camden as a witness in your cause. You had better hunt up all your papers. You have got some that will be of great use to you. He spoke of two notes Mr. Brolasky had given him for the mortgages. He said he was surprised that they did not pay it; that they got the place cheap enough ; that the transaction was an honorable one. He said they wanted him to say that Brolasky wanted a bonus allowed on the mortgage. And that Mr. Brolasky never had asked it and did not get it.

      Henry Brolasky,
    a witness produced upon the part of the complainant, being duly sworn according to law, doth depose and say : Mr. Burk came to my father’s cottage, at Cape May, in July, 1851, and said he wanted to see a receipt that he had given my father for the two old mortgages of f800 and $6Ú0. He said he wanted to show it to Mi*. Ware. My folks agreed I should go with it and take it. Burk and myself started to go to Ware’s house. We met him in the street. I took the receipt out and read it to him in the presence of Burk. Mr. Burk told Ware he had forgotten he had given the receipt. He told me that the $100 was allowed on the two mortgages of $800 and $600, that it was a perfectly fair transaction. I met Mr. Burk one day after this in the street; he said he had just come from Congress Hall and had seen Mr. Miller; he thought he could make a compromise, for Miller had offered to give $2,800. He had also seen Mr. Ware; that Ware offered to give $3,000. He said he thought they had better settle it; that they would lose if they went to law. In a conversation I had with him I remember that he said the $100 was allowed on the two mortgages of $800 and $600. Ho said nothing to me about the new mortgage. He said he was present when the goods were selected by Clark, and they were sold at reasonable prices.

      R. P. Thompson

    for the complainant.

      William Hoisted

    for defendants.
   The Chancellor

declared the bond and mortgage to be usurious, and ordered the bill dismissed.

Order accordingly.


author: The Chancellor.

text:
    The Receivers of the New Hope Delaware Bridge Co. v. John D. Rich and wife and others.
    A deed from A., of the first part, to B. & O. in trust for the use of D., her heirs and assigns, of the second part, witnessed, that the party of the first part, in consideration of $300, to him paid by the party of the second part, granted, &c., unto the party of the second part, their heirs and assigns, certain land: To hold unto the . said party of the second part, their heirs and assigns, to the only proper use, benefit and behoof of them the said party of the second part, their heirs and assigns forever. And A. covenanted to and with B. & C. in trust for D., her heirs and assigns, party of the second part, that he was seized, &c.
    Another deed from A., of the first part, and B. & O. in trust for the use of D., party of the second part, witnessed, that the party of the first part, in consideration of (&c.,) to him paid by the party of the second part, granted, &e., unto the party of the second part, their heirs and assigns, certain other land: To Have and to Held unto the party of the second part, their heirs and assigns, to the only proper use, benefit and behoof of them the said party of the second part, their heirs and assigns forever. And A. covenanted to and with the said B. & O. in trust for the said D., party of the second part, their heirs and assigns, that he was seized, &c.

      Held: that these deeds gave a legal estate in fee, in trust for D. in fee.
    The case appears sufficiently in the opinion delivered.

      Wakefield

    for the complainant. He cited 4 Kent’s Com. 303, 4, 5, 461, 8.

      P. J. Clark

    for the defendants. He cited 5 Bac. Ab., Uses and trusts, B. 357; 4 Kent’s Com. 6; 4 Comyn’s Dig. 28, B. 10; 2 Bl. Com. 296; 2 Bac. Ab. 495, C. 2; 6 Term Rep. 213; 2 Com. Dig. 350; 5 Halst Rep. 42.
   The Chancellor.

The bill is for the foreclosure of a mortgage given by Abram D. Myers and Martha, his wife, to “ The President and Managers of the New Hope Delaware Bridge Company.”

The interest of the mortgagors in the premises mortgaged was that derived from two deeds, given by John Coryell to John G. Myers and Dillon P. Myers, in trust for Martha Myers. The first, dated January 10, 1888, as follows : ££ This Indenture, &c., between John Coryell, of, &c., party of the first part, and John G. Myers and Dillon P. Myers in trust for the use of Martha Myers, her heirs and assigns, of, &e., party of the second part, witnesseth, that the said party of the first part, for and in consideration of $300, to him paid by the said party of the second part, Hath granted, &c., and doth grant, &c., unto the said party of the second part, their heirs and assigns, all that certain lot, &c.: To have and to hold unto the said party of the second part, their heirs and assigns, to the only proper use, benefit and behoof of them, the said party of the second part, their heirs and assigns forever. And the said party of the first part, for himself, &c., doth covenant, promise and agree, to and with the said John G. and Dillon P. Myers in trust for Martha Myers, her heirs and assigns, party of the second part, that he is seized, &c.” The second of the said deeds is dated February 1, 1838, and is as follows : ££ This Indenture, made, &c., between John Coryell, ef, &c., party of the first part, and John G. Myers and Dillon P. Myers, of, &c., in trust for the use of Martha Myers, party of the second part, witnesseth, that the said party of the first part, for and in consideration, See., to him paid by the said party of the second part, have granted, &c., and do grant, &c., unto the said party of the second part, their heirs and assigns, all that certain lot, &c.: To have and to hold unto the said party of the second part, their heirs and assigns, to the only proper use, benefit and behoof of them, the said party of the second part, their heirs and assigns forever. And the said John Coryell, for himself, &c., doth covenant, promise and agree, to and with the said John G. Myers and Dellon P. Myers, in trust for the said Martha Myers, party of the second part, their heirs and assigns, that he is seized, &c.”

I think these deeds give a legal estate in fee, in trust for Martha P. Myers in fee.

Decree for complainant.


text:
    Jacob France, Jun., v. Jacob France, Sen.
    On the 1st of April, 1834, A. agreed, by parol, with B., Ms son, that if B. would go- and live on a certain portion of A.’s land, being woodland, of 25 acres, and clear - and improve such parts of it as B. might think proper, for tilling and meadow, A. .would, after B. had begun the improvement, give B. a deed in fee for the 25 acres. . B. accepted the proposition, went into possession, cleared a large portion of the tract, and built on and otherwise improved the same; and continued to reside thereon from that time to the time of the filing of the bill, in May, 1850, performing the condition .of the agreement, on Ms part.
    Specific performance was decreed.
    Bill exhibited May 22d, 1850, by Jacob France, Jr., stating, that Jacob France, Sen., (the defendant) was, on the 1st of April, 1884, seized in fee of certain tracts of land in the township of Blairstown, in the County of Warren, adjoining, &c., consisting, .in all, of about 220 acres. That the said defendant is the father of the complainant. That on or about that time the complainant was about purchasing of one Garret Cook a tract of woodland, for the purpose of clearing and cultivating it, and . informed the defendant of his intention. That the defendant immediately remarked to the complainant, that it was unnecessary for the complainant to buy land, and that too, of a stranger, when he, the defendant, had so much uncultivated land which he would give the complainant if the complainant would only clear it up.
    That a great part of the land owned by tbe defendant was at that time woodland, and of little value unless cleared up. That the defendant, on or about April 2d, 1834, came to tbe complainant and said to him, Come now, Jacob, I am going to show you the piece of land I am about to set off to you; you are my son, and I wish to do something for you. That he, accordingly, went with the defendant, who marked out a certain tract of woodland containing 25 acres, situated in the township, adjoining, &c. That, after the defendant had marked out the said tract, and on the game 2d of April 1834, the defendant agreed with the complainant, that if the complainant would go on the said tract, and improve and clear such portions of it as the complainant might think proper for tilling and meadow, he, the defendant, after the complainant had begun the improvements, would give to the complainant a good and sufficient conveyance for the said tract, and that the complainant should be at no other expense for the same than to pay for the drawing of the deed and the surveying of the tract. And that the complainant agreed to accept the said tract upon the said terms.
    That when the said parol agreement was made, the whole of the said twenty-five acres was covered with wood, except about two acres, which had grown up with underbrush; that there were no improvements of any kind on the said tract; and that the land as then situated was not worth more than $5 an acre.
    That, placing implicit confidence in the word of the defendant, and in pursuance of the said agreement, the complaintant, on or about April 3d, 1834, entered into possession of the said tract and commenced improving the same. That, during the summer of 1834, the complainant cut timber, and built upon the said tract a neat log dwelling house, at an expense of about $80. That in June, 1835, the complainant moved his family into the said log dwelling house, and that he has ever since occupied the said premises. That, during the summer of 1835, he built a log barn on said premises, at an expense of $20 ; and that he put some other small buildings on the premises at considerable expense. That he has expended a large sum of money in fencing sixteen acres of the said tract, to wit, the sum of $125 in building a rail fence. That he built a large stone wall on one side of the said tract, at an expense of $50. That he has expended the further sum of $50 in clearing the stone from a portion of the said tract. That he has made a road through the said premises to the public highway, at an expense of $20 ; and has, at great expense, planted upon the said premises a large number of fruit trees; which are now just beginning to bear fruit. That he lias cultivated a garden upon the said premisos; and has, since he has been so in possession, cleared fifteen acres of the said tract; that, of this, he has made about five and a half acres into good timothy bottom meadow, and the remainder he has tilled. That the improvements he has made upon the said tract have increased its value, and he considers it worth at this time $15 an acre.
    That the whole profit he has received from the said land since he has been in possession has not paid the interest on the money he has expended in its improvement and cultivation. That he made all the said improvements in the confident expectation that the defendant would carry out, in good faith, the agreement he had made as aforesaid.
    That, since he has made the improvements aforesaid, he has frequently applied to the defendant to execute to him a conveyance of the said premises ; and the complainant was willing to pay for the deed and survey; but the defendant has refused, (&c.) That the defendant, on or about May 13, 1850, caused a declaration in ejectment to be served upon the complainant, for the purpose of turning him out of possession of the said premises.
    The bill prays a specific performance of the said agreement; or, if (&c.) that an account be taken of the improvements made by the complainant on the said premises, of the moneys by him expended thereon, of the value of his time and labor in improving and cultivating the said land, and that the defendant may be decreed to pay the same; or, that the said lands may be sold, and out of the proceeds thereof the complainant be paid such sum as shall be found due to him as aforesaid; and that the defendant may be restrained by injunction from further prosecuting the said ejectment.
    The injunction prayed was allowed.
    The defendant, in his answer, admits, that on the 1st of April, 1834, he was seized of several tracts of land, situate, (&c.) consisting, in all, of about 130 acres, and not 220 acres.
    He denies that the complainant ever informed him that he was about purchasing of one Garret Cook a tract of woodland for the purpose of clearing and cultivating it, or that he knew anything about such intention of complainant.

      He denies that he ever remarked to the complainant, that it was unnecessary for him to buy land, and that, too, of a stranger, when he had so much uncultivated land that he would give him if he would clear it up. He admits that a great part of his land at that time was woodland; hut says it was valuable as woodland.
    He denies, that on or about April 2d, 1834, or at any other time, he went to the complainant and said to him, come now Jacob, I am going to show you the piece of land I am going to set off to you; you are my son, I wish to do something for you, or that he took the complainant and marked out a certain tract for him; but he charges the truth to be, that the complainant was not doing very well, living upon property for which he had to pay rent, and being in debt; and, being desirous of bettering his condition, he gave the complainant permission to go upon the said 25 acre tract, upon condition that he would improve it some, and that he might remain there a few years without paying rent.
    He denies that he ever agreed with the complainant, that, if the complainant would go on the said 25 acre tract and improve and clear such portions as the defendant might think proper for tilling and meadow, he, the defendant, would give to the complainant a good and sufficient deed of conveyance for the same, and that the complainant should he at no other expense for the same than to pay for the deed and survey, or that he ever made such a proposition to the complainant, or to any other person in behalf of the complainant.
    He admits, that, on the 1st of April, 1834, the said 25 acres was covered with wood, except about two and a half acres, which was cleared and in fence, hut some underbrush was growing upon it; hut he says, that the land, as then situated, was of double the value put upon it in the bill.
    He admits that the complainant entered into possession of the premises on or about April 3d, 1834; hut he denies that' he did so under an agreement that the defendant was to make him a deed for the same.
    He admits, that, during the summer of 1834, the complainant built upon the premises a log dwelling house; hut says, that all ■the materials used in the building of said house were taken off ■the said ‘tract and other woodland of the defendant; and that the work and labor done and expense incurred in the building of said house by the complainant could not have amounted to $80.
    He admits, that, during the summer of 1835, the complainant built a log barn on the premises; but says, that the expense thereof could not have amounted to $10; and that the complainant burnt the said barn for firewood. He admits, that the complainant put some other small buildings on the premises, but at a very small expense.
    He admits, that the complainant fenced, in part, a sixteen acre field on said tract; but says, that the material used for said fencing was cut on the said tract and other land belonging to the defendant, and that the whole cost of said fence could not exceed $20. He admits, that the complainant put a stone row instead of a stone wall, along one side of part of the lot; but says, that the expense was not $10.
    He admits, that the complainant cleared some stone off of a portion of said tract; but says, that he had the use of the defendant’s oxen to draw stone at different times, and the expense to the complainant could not have amounted to $20.
    He denies that the complainant made a road through the premises to the public highway, at an expense of $20, or any other sum; but says, that there was a road therefor many years before the complainant went into the possession of the premises.
    He admits, that the complainant planted some fruit trees upon the premises ; but says, that the number is small and the expense trifling. And he admits, that the complainant cultivated a garden upon the premises, and cleared about 15 acres of the tract, and made some meadow upon it.
    He admits, that the improvements made upon the premises have increased the value thereof to some extent, but not to the amount set out in the bill.
    He denies, that the profit which the complainant has received from the said land since it has been in his possession has not paid the intérest of the money the complainant has expended in its improvement and cultivation; but says, that the complainant has been abundantly paid for all the improvements he has made, by receiving all the rents, issues and profits of said land, by cutting down timber upon the promises, and other lands of the defendant, and making a large number of rails, spokes, staves, and also pealing bark and selling the same, with the rails, spokes and staves, amounting, in all, to §500.
    He says, that he assisted the complainant in making fence, and picking stone off said premises, and helped in improving the premises.
    He denies that the complainant has frequently applied to him to execute to the complainant a conveyance of the premises ; but says, that, on or about September, 1841, he caused to be served upon the complainant a notice as follows : “ Mr. Jacob France,
    Jr.: You are hereby notified that I demand possession of the premises held under me, now in your occupation, on the first day of April next, that being the expiration of your term of occcupation, and in case of your not compliance I shall hold you a trespasser and liable to pay the penalty by law inflicted for holding over.”
    He says, that, on or about May 22d, 1848, ho prepared a lease between himself and the complainant, and requested the complainant to sign the same; but that the complainant refused, at the same time saying to the defendant, that he ought to give him, the complainant, a release or quit claim deed for said premises; but made no pretence that any agreement had ever been made, or that the defendant was in any way bound to give him a title for said premises ; and that is the only time the complainant ever mentioned or intimated to the defendant that he ought to have a title from the defendant for the premises.
    He admits the bringing of the ejectment.
    On this answer, a motion to dissolve the injunction was submitted, without argument, and the injunction was dissolved.
    A replication was filed, and testimony taken; and the cause Was brought to hearing on the pleading and evidence.

      P. D. Vroom

    for the complainant.

      S. G. Potts

    for the defendant. He cited 2 Story’s Eq. Jur sec. 763, 764.
   The Chancellor.

The case made by the bill is established by the evidence; and the complainant is entitled to a specific performance of the agreement.

Decree accordingly.