text:
    WILLIAM PHŒNIX v. SILAS C. CLARK.
    1. On bill by a mortgagee against a mortgagor, making other mortgagees, and judgment creditors of the mortgagor parties defendant, a decree for sale was made, to satisfy the encumbrances, according to their priorities. The property was sold under the decree. Afterwards, the mortgagee last in priority, the proceeds of the sale under the decree not being sufficient to pay any part of his mortgage, bought the property from the purchaser under the decree, and filed a bill against the mortgagor, who still remained in possession, to restrain him from committing waste. The injunction was allowed, and a motion to dissolve it was denied.
    2. After sale of mortgaged premises under decree and execution, the mortgagor in possession will be restrained from committing waste.
    Silas C. Clark and his wife gave several mortgages on lands in Morris county, the first of which was held by Edward W. Whelpley, the second by Barnabas Doremus, the third by Joseph Cutler, the fourth and fifth by Charles J. Skellinger and William Phoenix, respectively. Joseph Fairchild, Charles J. Skellenger, John Condifc, and John H. and Thomas Stephens recovered judgments against Clark, in the Circuit Court of Morris.
    Doremus filed his bill in this court for foreclosure and a sale of the mortgaged premises, and made the other mortgagees and the judgment creditors defendants. A decree was made for the sale of the premises to satisfy the encumbrances, according to their priorities.
    The sheriff sold the premises to one Freeman Wood, Phoenix not being present at the sale, and conveyed the premises to Wood ©n the 1st of October, 1846. The sum for which the premises sold was insufficient to pay any part of Phoenix’s mortgage, after satisfying the prior mortgages.
    On the 26th of October, 1846, Phoenix agreed with Wood to give him what he had -paid to the sheriff and $50 for the premises, and Wood agreed to take it, and thereupon conveyed the premises to Phoenix.
    On the 4th of November, 1846, Phoenix filed his bill stating the before-mentioned facts, and that he bought the premises from Wood, as aforesaid, in order to secure to himself the amount decreed to be paid to him on his mortgage; that the lands are a scanty security for the money so paid ; that they are still occupied by Clark; that he, Clark, is embarrassed in his pecuniary affairs, and unable to pay to him, Phoenix, the amount so adjudged and decreed to him; that since the said decree, and since the said sale to Wood, and since the said conveyance by Wood to him, Phoenix, Clark has committed great waste upon the premises by cutting down the wood and timber; and that, on the Friday or Saturday of the week before the bill was filed by Phoenix, Clark cut down a large quantity of wood and timber, and sold it to one Stephen Connett; and praying an injunction against Clark, restraining him from committing further waste.
    The injunction was granted.
    A motion was made, without answer, to dissolve the injunction.
    A demurrer was also filed to the bill.

      V. Dalrimple, in support of the demurrer and of the motion to dissolve the injunction.

      J. S. Hager, contra.

   The Chancellor.

The motion to dissolve is denied, and the demurrer to the bill overruled. It is true that the purchaser at the sheriff’s sale, or his grantee, might bring ejectment, and obtain from the court in which the ejectment is brought, a rale to stay waste, but in the meantime, and before that could be done, the mortgagor, remaining in possession, might destroy the property, or commit irreparable waste, and compensation in damages might not be attainable by reason of the inability of llie mortgagor to respond.

If this court should not, itself, put the purchaser at sheriif’s of mortgaged premises, in possession, it should certainly extend its arm to protect the property from waste and destruction until the purchaser can have an opportunity of obtaining the aid which a court of law, on ejectment being brought, can aiford him to prevent waste. In this case the title has passed from the defendant by the decree of this court. There is, therefore, no question of title in the way. The mortgagor is merely holding possession of the property, without pretence of title, till he can be lawfully dispossessed.

I have no doubt of the propriety of the interference of this smvt in such a ease by injunction.

Motion denied, and'demurrer overruled.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    ABRAHAM P. YOUNG v. THE EXECUTORS OF JACOB YOUNG.
    Award set aside, on the ground that the arbitrators acted on a matter not within the submission.
    Jacob Young died June 2d, 1843, leaving a will, dated July 1st, 1840, of which he appointed Samuel Stewart, Philip Fine, Edward Hunt, and his son, Abraham P. Young, the complainant, executors. Fine died in May, 1845. Differences having arrisen between the complainant and the other surviving executors, they agreed to submit the same to arbitration, and, thereupon, the complainant, in his individual capacity and also as executor, and the said Stewart and Hunt, the other surviving executors, on the 13th June, 1845, entered into an agreement under seal, by which they submitted all matters in difference as sfet forth in the schedule annexed to the said agreement, to three persons therein named, arbitrators by them chosen, and mutually covenanted and agreed, under the penalty of $500, to abide and perform the award of the said arbitrators unanimously rendered.
    The schedule annexed to the agreement contained, on the one side, an account of the complainant against the estate of the testator, commencing March 13th, 1814, and running to and including the year 1833, and consisting of charges for rails and fencing stuff, lumber, shingles, glass, carpenter and mason work, work done at house, work at barn, hauling stone and timber, cutting timber, boarding hands, money paid carpenter and mason, lumber for grain-house, carpenter and mason work, shingles and nails; and, on the other side, a statement of the claim of the executors against the said Abraham P. Young, as follows s

      “ Balance on bond dated January 23d, 1819, penal sum $950, conditioned for payment of $475 on or before May 1st, 1819, with interest from day of payment, drawn by Abraham P. Young and Jacob Young to Philip Slout, paid off by Jacob Young/7
    The testator had three sons, the complainant and two others, and had, in his lifetime, put each of them in possession of a farm ; and had put buildings on the farms, respectively, of which he had put the other two sons, severally, in possession, at his own expense. A large part of Abraham’s account annexed, as aforesaid, to the agreement of submission was for materials furnished and work and labor done in putting up buildings on the farm of which he had been put in possession. The several farms were devised to the sons severally in possession.
    It was admitted before the arbitrators that an agreement liad been made between the father and the sons, by which the several farms were allotted to the sons severally, and to be devised to them respectively, on their paying a certain sum per acre. And it was also admitted before the arbitrators, that Abraham was charged in the will $4 an acre more for the farm devised to him than by the said agreement he was to be charged.
    The arbitrators admitted evidence that Abraham had out and sold timber from the farm in his possession, (afterwards devised to him,) in the lifetime oí the testator, and twenty years prior to the agreement of submission, and, considering this wood and timber as a set-off against his whole account, allowed him nothing on his account, and made an award against him for the amount of the principal and interest of the bond stated in the schedule annexed to the agreement of submission.
    The bill was filed to set aside the award.
    An answer was put in by the executors, and testimony was taken.
    P. B. Kennedy and P. D. Vroom, for the complainant.
    They cited 10 Wend. 498; 1 John. Ch. 313; 2 Paige 193; 15 John. Rep. 511, 229; 1 Green’s Rep. 68 ; 2 South. Rep. 721 ; 3 John. Rep. 427 ; 9 Ib. 141 ; 1 Green’s Ch. Rep. 297, 301 ; 3 Atk. 468 ; 3 Wash. C. C. Rep. 45; Coxe’s N. J. Rep. 385; 2 Penn. Rep. 932; 5 Halst. Rep. 17; 2 Green’s Rep. 333.

      H. McMiller and S. G. Potts, contra.

    They cited 10 John. Rep. 143 ; 3 Ib. 367 ; 2 Ib. 62; 1 McCord 408 ; 2 Bibb 456; 3 Ib. 441; 1 Ward. 236 ; 2 Chiven 638; 1 Ib. 117; 5 Wheat. 394; 10 Wend. 589; 14 John. Rep. 96; 3 Bl. Com. 16; 16 Vt. Rep. 450; 7 Cowen 186; 3 Caines 166; 1 Lord Raym. 248.
   The Chancellor.

The submission was of Abraham’s account against the estate, on the one side, and of the claim of the executors on the bond on the other. Both were very stale demands. The bond was due in May, 1819. When the testator paid it, if he did pay it, did not appear. There was a credit on it, March 17th, 1823, of $22.08, signed by the testator.

On this submission, both parties were at liberty to rely on the lapse of time as a bar, or neither was. The arbitrators could not capriciously give effect to the lapse of time as against one, and refuse to do so as against the other. That was not the. course adopted by the arbitrators. It is clear that they reached their result by permitting the executors to show that Abraham had cut from the farm in his possession, wood and timber, twenty years before, and by offsetting this wood and timber against his account, and charging him with the principal and interest of the bond, notwithstanding the lapse of time and his insistment before them that he had paid the bond.

Would Abraham have entered into a submission which would allow the executors to claim against his account the value of the wood and timber he had cut from the farm in his possession, and which had since been devised to him ? He did not make such a submission. The particular subjects of submission were designated. And the case shows sufficient reason why Abraham should not agree to submit the matter of the wood and timber. The father paid for the buildings put on the farms of the other two sons. Should the wood and timber which Abraham took off the farm devised to him be considered as a payment by the father for the buildings put on this farm ?

Again, it was admitted before the arbitrators that Abraham was charged in the will $4 an acre more for the farm devised to him than he was to have been charged under the agreement, also admitted to have been made, by which the several farms were allotted to the several sons, and were to be devised to them on paying a certain sum per acre. These are abundant reasons why Abraham should not make such a submission as would authorize the arbitrators to charge him with the wood and timber he had taken off the farm allotted and devised to him. The arbitrators did charge him with this wood and timber; and in doing so they acted upon a matter not within the submission. For this reason, the award will be set aside.

Order accordingly»


author: The Chancello®.

text:
    THOMAS J. OAKLEY v. DARIUS YOUNG AND OTHERS.
    1. in August, 1844, B. recovered a judgment against Y., who was then seized of certain lands. On the 6th of January, 1845, Y. conveyed an undivided half of said lands to L. On the 14tb of January, 1845, Y. confessed a judgment to L., upon which execution was immediately issued and levied upon all the right of Y. in the said lands. On the 9th of August, 1845, execution was issued on B/s judgment, and levied on all the said lands. An injunction was allowed, restraining the sheriff from selling, under the judgment confessed to L., the undivided half which had been conveyed to him prior to the entry of Ms judgment.
    2. The bill further charged that the judgment confessed to L. was collusively confessed and taken for the purpose of defeating the prior judgment, and of protecting Yds property from his creditors; and prayed that Bis judgment might be declared the prior lien on all the lands. A demurrer to the bill was overruled.
    The bill states that in August, 1844, John F. Bailey obtained a judgment against Darius Young, by confession, for «$10,000 j that Young was then possessed of block 11, in Jersey City, which was conveyed to him by the Associates of the Jersey Co., May 20th, 1844.
    That on the 6th of January, 1845, Young and his wife conveyed an undivided half of this block to Lathrop and Bartlett, for the consideration expressed of $6009; and on the same day-released to Lathrop and Bartlett the undivided half of the water right in front of the block.
    That Bailey assigned his judgment to the complainant on the 24th of February, 1845, for the consideration expressed of $5000; and covenanted that there was $5000 due, and interest and costs.
    That before taking the assignment, the complainant inquired of Young as to the said jndgment, and was told it was valid, and that the amount thereof was due Bailey ; and the complainant then told Young he was about to take an assignment of the judgment, to which Young made no objection, but solicited the complainant to delay issuing execution on the said judgment, which he did.
    That on the 14th of January, 1845, Young confessed a judgment to Lathrop and Bartlett for $6101.81, and on the 17th of June, 1845, another judgment for $8220.62.
    That when these judgments were confessed to Lathrop and Bartlett, they knew of the Bailey judgment, and connived and colluded with Young to have the said judgments confessed to them, in order to defeat the Bailey judgment, and to defraud the complainant of the benefit thereof. That the complainant, confiding in Young, deferred issuing execution for nearly a year from the date of the Bailey judgment.
    That on the 14th day of January, 1846, Lathrop and Bartlett issued and delivered to the sheriff an execution on the first of said judgments confessed to them; and on the 17th of June, 1845, delivered to the sheriff an execution on the other of said judgments. That on the 9th of August, 1845, the complainant delivered to the sheriff an execution on the Bailey judgment, which was levied on the whole of said blook and water right.
    That the sheriff, on the said executions in favor of Lathrop and Bartlett, levied on all the right, title and estate of Young in the said block and water right.
    That Lathrop and Bartlett caused the sheriff to make his levy in manner aforesaid, and thus to include as well the undivided half conveyed by Young and wife to them, by the deed of January 6th, 1845, as the other undivided half belonging to Young, for the purpose of defeating the lien of the complainant’s judgment on that half of the block and water right conveyed by Young and wife to them as aforesaid.
    That Lathrop and Bartlett, before the confession of the said judgments to them, became embarrassed and had not the means i.o advance the amount of the said judgments. That the amount of the said judgments is not due, and that they were taken for a larger sum than was due, for the purpose of covering the property of Young, and delaying and hindering other creditors; and that the said judgments, or a great portion thereof, have been paid by Young since they were confessed, and that they are kept on foot for the purpose of protecting the property of Young from the other creditors.
    That Lathrop and Bartlett now claim the right to sell under their said two executions, not only the moiety of the said Young in the said block and water right, but also the moiety of the block and of the water right conveyed to them, as aforesaid, by Young and wife, and that, by so doing, they will relieve that half from the lien of the complainant’s judgment.
    That Lathrop and Bartlett caused notice to be served that an application would be made to the Supreme Court, on the 7th of January, 1846, for a rule on Bailey to show cause why satisfaction of his judgment should not be entered, alleging that it had been fully paid, and for an order to stay all proceedings on the said judgment.
    That Young has, since the entry of the Bailey judgment, become insolvent.
    That the complainant believes that the object of the said application to .the Supreme Court is to delay and defeat a sale of the said property of Young, and of Lathrop and Bartlett, under the Bailey judgment, and to enable Lathrop and Bartlett first to sell said property on their said judgments, and to give an unjust advantage to their said judgments.
    That the whole amount of the said two judgments confessed to Lathrop and Bartlett was not due them, but, if really found due, that so much as shall be found due, and for which the said judgments were confessed, should, pro tanto, be considered as having been previously paid to Lathrop and Bartlett, on their said executions, by the transfer of the half of the said block and water right, at the consideration expressed in the deeds, and that Young, and Lathrop and Bartlett are bound by and estopped from denying the same, they having had full notice of the complainant’s judgment, and of its priority.

      That the sheriff has declared he will sell all the said block and the water rights in front thereof, first, on the said judgments of Lathrop and Bartlett, before selling on complainant’s said judgment.
    The bill prays that the said judgments confessed to Lathrop and Bartlett may be declared fraudulent and void, as against the complainant, or, if they be deemed valid, that an account may be taken of what is justly due thereon; and that the judgment of the complainant may be declared a lien on all the property Young was seized of at the entry of this judgment, and, particularly, on the half of said block and water right sold by Young and wife to Lathrop and Bartlett since the entry of the Bailey judgment;' and that the priority of the Bailey judgment, as a lien on all the real estate Young was seized of at the time of its rendition, may be established over the lien of the said judgments of Lathrop and Bartlett. And that the defendants may discover whether Lathrop and Bartlett, before the rendition of their said judgments, became embarrassed, and whether they advanced the amount of the respective bonds on which the said judgments were confessed, and may set forth the claims, and of what they consisted; of the account of Lathrop and Bartlett, which made up the sums mentioned in the conditions of the said bonds, and the credits to which Young is entitled on said account, and, specifically, of what they consisted, and all payments made by him to them, on account of his indebtedness to them, on account of said judgments; and that the amounts justly due from Young to them, if any, may be ascertained under the direction of this court; and that the sheriff may be restrained from selling any of the said real estate of Young, under the said executions of Lathrop and Bartlett, or that a sale of all the lands of Young may be made under the direction of this court, and the moneys arising therefrom be brought into this court, for distribution to and among such of the creditors as shall be entitled to the same, according to their legal priorities.
    An injunction was allowed, according to the prayer of the bill in that respect.
    ■ The defendants filed a general demurrer to the bill.
    The papers were submitted to the court without argument.

      E. R. V. Wright and Thos. W. James in support of the demurrer.

      W. Ualded, eontra.

   The Chancello®.

The demurrer will be overruled.

Order accordingly»


text:
    ANDREW S. GARR v. SELAH HILL.
    The repetition in a further answer, or in an answer to an amended bill, of anything contained in a former answer, which is not necessary or expedients is impertinent.
    The answer was excepted to, and some of the exceptions were allowed by the master. The complainant then amended Isis bill. The defendant, in answering the exceptions and the amended bill, repeated the whole of his first answer, which contained eighty folios. The second answer was excepted to lor impertinence. The master reported that the exception was not well taken. An appeal to the Chancellor was taken to this report.

      S. R. Hamilton, for the appeal,
    cited 1 Hoff. Ch. Pr. 252 ; 3 Atk. 303; 1 Cooper’s Eq. Pl. 322; Mitford Pl. 257, 318 ; 1 Barb. Ch. Pr, 196; 2 Ib. 424 ; 6 Paige 46; Story’s Eq. Pl., § 868; 8 Paige 690.

      P. D. Vroom, contra.

   The Chancellor.

The exception should have been allowed. The repetition in a further answer, or in any answer to an amended bill, of anything contained in a former answer, which is not necessary'or expedient, is impertinent.


text:
    SILAS C. CLARK v. FREEMAN WOOD AND WILLIAM PHŒNIX
    1. Notice of trial is a breach, of an injunction staying proceedings in an ■action at law.
    2. On bill by one in possession of land, for the specific performance of an alleged agreement, by the defendant, to purchase the land at sheriff's sale, on ■execution against the complainant, and take a mortgage for the amount advanced by him to pay encumbrances, an injunction to restrain proceedings to recover possession from the complainant will not be retained until the hearing, if the amount due is large in proportion to the value of the land, and the responsibility of the complainant is comparatively limited
    The bill was filed by Silas C. Clark, who had given several mortgages on his lands, and against whom several judgments had been recovered. It alleges that an agreement was made between him and the defendant Freeman Wood, prior to the sheriff’s sale under the executions then levied on the complainant’s lands, that Wood should pay the encumbrances on the land, except the mortgage to Phoenix, the other defendant, which the complainant says he intended to make other arrangements to pay off, and that Wood should become the purchaser at the sheriff's sale, and that the complainant should have the right to redeem the lands by paying to Wood what he should advance in paying encumbrances, and that Wood should give the complainant a writing to that effect, or that he would release the lauds to the complainant, and take a mortgage thereon from the complainant for the money he should advance, as soon as the sheriff’s deed should be made to him, Wood, at the option of the complainant, and that the complainant should remain in the possession of the lands.
    The bill further states that after the property was struck off and conveyed by the sheriff to Wood, he made a deed for the land to Phoenix, who is charged with notice of the agreement, in consideration of the amount which he, Wood, had advanced, and $50; and that Phoenix had commenced an action of ejectment at law to recover possession of the land.
    The bill prays performance of the said agreement, and an injunction restraining further proceedings in the ejectment.

      The injunction prayed was allowed.
    Answers were put in, and a motion made to dissolve the injunction.
    J. D. Hager and E. W. Whelpley, for the motion.
    V. Dalrimple, contra.

      Mr. Dalrimple stated, and it was not denied, that since the service of the injunction the plaintiff in the ejectment had caused a notice of trial in that action to be served, and submitted that the motion should not now be heard.
    The Chancellor said it was a breach of the injunction to give notice of trial. See 2 Sim. and Stu. 186.
    The notice of trial was thereupon countermanded, and Mr. Dalrimple consented that the argument of the motion to dissolve should proceed.
    Cases cited in support of the motion: 4 Wheat. 255; 1 Mason 191; 3 Wend. 208; 2 Story’s Eq., § 1020; Rev. Stat. 658, § 4; Saxton 537; 1 Green’s Ch. 264; 2 Ib. 429; 1 Halst. Ch. 20; 2 Sugdon on Vendors 221, 223, note; 2 Pick. 184.
    Contra, 3 Green’s Ch. 310, was cited.
   The Chancellor.

This is not a bill to redeem on paying the amount due Phoenix. The object of the bill seems to be to compel Phoenix to take a mortgage for what he paid to Wood and the amount of his own mortgage.

The question now presented is, whether the complainant shall be permitted to keep possession pending the controversy in this court, or whether Phoenix shall not be permitted to recover, and hold possession during the controversy.

The amount due Phoenix is large, in proportion to the value of the land, and the responsibility of the complainant appears to be comparatively limited. Under these circumstances, I . think the injunction should be dissolved.

Order accordingly.


author: The ChanceiJjOR.

text:
    JOHN J. HERRICK AND ABRAHAM VAN BOSKIRCK v. ABIJAH MANN, JR., AND OTHERS.
    1. A gave a mortgage to B, and died, leaving a will, of which he appointed four executors. C, claiming the mortgage through an assignment by the executors to one of themselves, and an assignment by him, for his own purposes, to an assignee, in trust for a company, and an assignment by said trustee to C, filed a bill of foreclosure on the mortgage, and obtained a decree for sale. The property was sold by the sheriff, and bought by D, who paid the purchase money to the sheriff, and received a deed. Before the sheriff paid over the money, D filed a bill, stating that the alleged assignment by the executors of A, to one of themselves, was void ; that one of the said executors alleges that his name appearing to the said assignment is forged, and that the said mortgage is a part of the assets of the estate of A ; that the executors of A were not made parties to the foreclosure bill; that one of the said executors had given notice to the clerk of Hudson not to permit the cancellation of the said mortgage; and praying that the parties claiming the said mortgage and the proceeds thereof may interplead; and that the sheriff may be enjoined from paying the money to either of them, and may be ordered to pay it into court, to abide, &c.
    2. The orders prayed were allowed; and a motion, without answer, to vacate them, was denied.
    In February, 1836, John Bruce and Charles Bruce, of New York, gave their bond to James Ballagh, of New York, conditioned for the payment of $2000, in one year, with interest, and to secure the same, the said Bruces, with their wives, gave a mortgage to Ballagh, of the same date, on lot No, 8, Essex street, and lot No. 7, Morris street, in Jersey City, being the same premises which Ballagh had conveyed to them. Ballagh died in January, 1838, leaving a will, of which he appointed Hannahrietta C. Ballagh, executrix, and George D. Strong, William Ballagh, John S. McKibbin, and Oliver Woodruff, executors, all of whom proved the will.
    On this mortgage a bill of foreclosure was filed in 18 , by Abijah Mann, Jr., against the mortgagors and others, the executors of Ballagh not being made parties, stating that the executrix and executors of Ballagh, on the 6th September, 1838, in consideration of §2000 to them paid by the said George D. Strong, assigned the said bond and mortgage to the said George D. Strong, and that, on the same day, the said George D. Strong, in consideration of $2000 to him paid by Joseph D. Beers, president of the North American Trust and Banking Company, in trust for the said company, assigned the said bond and mortgage to the said Beers, to hold to him, his successors and assigns; that on the 1st of October, 1840, the said Beers, in consideration of §2000 to him paid by Thomas G. Talmage, president of the said Trust Company, assigned the said bond and mortgage to the said Talmage, to hold to him, his successors and assigns ; and that said Talmage, on the 15th December, 1840, in consideration of §2000 to him paid by Henry Yates, Thomas G. Talmage and William C. Noyes, trustees, assigned the said bond and mortgage to them, to hold to them and the survivor of them; and that, on the 1st of June, 1844, the said Yates, Talmage and Noyes, in consideration of §2000 to them paid by the said Abijah Mann, Jr., assigned the said bond and mortgage to him, the said Abijah, his heirs and assigns, for his and their benefit forever.
    On this bill a decree was made for the sale of the property to satisfy the mortgage, and lot No. 8 sold by the sheriff, on an execution issued on the decree, and John J. Herrick and Abraham Van Boskirck became the purchasers thereof, at §3300, and paid the purchase money to the sheriff and received from him a, deed for the property.
    Herrick and Van Boskirck then filed their bill, staling that they have been informed that the said sheriff has not paid over to the said Abijah Mann, Jr., or to his solicitor, all the moneys paid by them to him on,account of the purchase of the said lot, but retains in his hands a large portion thereof; that since the said sheriff delivered to them the deed for the said lot, they have been informed that the said Abijah Mann, Jr., has now no authority to receive the money due on the said decree for the sale of the said mortgaged premises, for which he filed his said bill; that at the time the said Mann filed his said bill, he acted as the special receiver under an assignment from Yates, Talmage and Noyes, trustees of the North American Trust Co.; and that these complainants have been informed that, at the time of the said sale made by the sheriff, the said Mann had no-power or authority, under the said assignment, to receive the said money, but that the power of the said Mann under the said assignment, at the time of the said sale, had been annulled by some court in New York, the complainants understood the Vice Chancellor’s Court.
    That since receiving the said sheriff’s deed, these complainants have been informed that the said executrix, and the said executors, Ballagh, McKibbins and Woodruff, or some of them, deny their right as such executrix and executors to assign the said bond and mortgage to the said Strong, a co-executor; and that the said assignment is void in law; and that the said executrix and executors are entitled to the said bond and mortgage as part of the assets of the estate of said James Ballagh, deceased.
    And these complainants further state, that since receiving the said sheriff’s deed, and on or about February 25th, 1847, the said Oliver Woodruff, executor as aforesaid, stated to the complainant Van Boskirck, that he, the said Woodruff, never executed, as one of the said executors, any such assignment as stated in the bill of the said Mann, to the said Strong, of the said bond and mortgage, and that his signature to the said assignment was a forgery; and the said Woodruff denied that the said Mann could derive any title to the said bond and mortgage by or through the said assignment; that these complainants have been informed that the said executrix and executors of James Ballagh, deceased, except Strong, have given notice to the clerk of Hudson not to cancel the said mortgage, and have threatened to dispute the title of these complainants under the said sheriff’s deed, and have given notice to the said sheriff not to pay over to the said Mann, or his solicitor, the said consideration money of the said sale.
    That these complainants have been informed that the said consideration money remains in the hands of the said sheriff, except a portion thereof, how much the complainants are not particulariy informed, which has been paid by the said sheriff to the solicitor of said Mann.
    The complainants then state, in the bill, that they hoped that said Mann and the said executrix, and the said executors, Ballagh, McKibbin, and Woodruff, would have adjusted, between them, their differences respecting the question to whom the said money in the hands of the said sheriff belongs, and would not have disturb -d the title of the complainants to the said premises under the said sheriff’s deed, but that the said executrix and the said three executors above named, on the one hand, and the said Mann, on the other, claim the said money in the hands of the said sheriff and of the solicitor of the said Mann, and that the complainants, under the circumstances, are in danger of being harassed on account of the said money, and on account of the title to the said premises.
    The bill prays that the defendants may answer, and that the said executrix and executors, including Strong, and the said Maun may set forth to whom the said money is due and payable, and may be decreed to interplead and adjust their several claims between themselves; that the said money may be paid into court, till the said claims are adjusted, and that the.said sheriff and the said solicitor of Mann may be enjoined from paying to the said Mann, or to the said executrix and executors, the said money, till the further order of this court • that the said sale to the complainants may be confirmed, or, if it be more agreeable to equity, that the said sale may be set aside, and the said purchase money refunded to the complainants.
    An injunction and an order directing the sheriff to pay the money into court, were allowed.
    A motion was made, without answer to the bill, to dissolve the injunction and vacate the order.
    D. A. Hayes, for the motion, cited 3 Daniell’s Ch. Pl. and Pr. 1753, note 1; Mitf. Pl. 49, note 141.

      I. W. Scudder and J. D. Miller, contra.

   The ChanceiJjOR.

Let the order and injunction stand until the answers of Strong and Mann come in.

Motion denied.


text:
    SUSAN ROLL v. ABNER SMALLEY AND OTHERS.
    On a bill by a second mortgagee, nothing more than the equity of redemption mortgaged to him can be decreed to be sold, unless the first mortgagee comes in with his mortgage, and thereby consents that a decree shall be made for the sale of the property, to pay his mortgage, also.
    Boltus Roll devised to his widow, Susan Roll, the use of all his homestead plantation, during her life. She conveyed to Abner Smalley all her estate in the plantation, and Smalley, in consideration thereof, executed to her his bond in $500, and a mortgage on his estate, in the said plantation, conditioned for the comfortable support of .the said widow during her life, or, in default thereof, for the payment to her of $500, with interest thereon. The mortgage was recorded.
    Smalley afterwards gave a mortgage on his estate in the-said plantation to one Wilson, for $750, which was afterwards assigned by Wilson to Stephen A. Burt. Burt filed a bill of foreclosure on his mortgage, making Susan Roll, the first mortgagee, a party defendant, and setting out the mortgage to her; and process of subpoena was served upon her. A decree pro oonfesso was taken against the defendants in that suit, and a reference to a master ordered. Susan Roll’s mortgage was not put in before the master, and he reported the amount due on Burt’s mortgage.
    A sale was made by the sheriff, under the decree, and Brooks Sayre became the purchaser, at $735.
    Susan Roll afterwards filed her bill for the foreclosure of her mortgage, and Sayre put in an answer, setting u,p the said decree and the sale to him under it.
    A replication was put in, and testimony was taken, showing that Sayre knew of the mortgage to Susan Roll, before the sheriff’s sale.

      F. B. Chetwood, for complainant.

      L. C. Grover, for defendant.
   The Chancellor.

On a bill by a second mortgagee, nothing more than the equity of redemption mortgaged to him can be decreed to be sold, unless the first mortgagee comes in with ins mortgage, and thereby consents that a decree shall be made for the sale of the property to pay his mortgage also, No other decree was made on the bill filed by Burt. The sale under that decree, therefore, was a sale subject to the mortgage of Susan Roll.

Decree for complainant.


text:
    THE EXECUTORS OF AARON D. WOODRUFF, SURVIVING EXECUTOR OF THOMAS LOWREY, v. JOHN BRUGH AND OTHERS.
    1. After 23 years from the taking of a decree pro confesso on an original bill against all the defendants therein except one, and 22 years after that one had answered the original bill, no step having been taken in the meantime in the original suit, a supplemental bill was filed against some of the defendants to the original bill, and against other persons who had become assignees of others of said defendants since the decree pro confesso was taken.
    2. A demurrer to the supplemental bill was allowed.
    On the 2d of October, 1822, Elias D. Woodruff and Thomas L. Woodruff, executors of the will of Aaron D. Woodruff1, deceased, who was surviving executor of the will of Thomas Lowrey, deceased, filed their bill, stating that on the 1st of April, 1810, Jacob Housel, being indebted unto Aaron D. Woodruff1 and William McGill, executors of the will of Thomas Lowrey, deceased, in $10,865.78, executed to the said executors of Lowrey’s will three bonds, dated April 2d, 1810 ; the first conditioned for the payment of $3521.92|, on the 1st of April, 1811, with interest; the second, for the payment of $3621.92J, on the 1st of April, 1812, with interest; the third, for the payment of $3621.95J, on the 1st of April, 1813; and that to secure the payment of the said bonds, the said Housel, with Mary, his wife, on the day of April, 1810, executed a mortgage to the said executors of Lowrey’s will on certain lands, (described in the bill.) That the mortgage was recorded on the 13th of April, 1810.
    That on or about the day of ,18 , Esther Lowrey, widow of said Thomas Lowrey, died. That the said William McGill died intestate, June 24th, 1815.
    That on or about June 25th, 1816, the said Aaron D. Wood-ruff died, leaving a will dated June 8th, 1814, of which he appointed the complainants executors.
    That on the day of , 1820, the moneys mentioned in the said second and third bonds remaining unpaid, the complainants filed their bill in this court against the said Jacob Housel and Mary, his wife, to foreclose, &c., and for the sale of the said mortgaged premises; and that on the 12th of October, 1821, it was decreed that the mortgaged premises, or such part thereof as might be sufficient for the purpose, be sold to pay to the complainants $7578.41, with interest thereon from the said 12th of October, 1821, and the further sum of $53.37, costs; and that a fi.fa. was issued on the said decree, directed to Edward Welsted, sheriff of Hunterdon. That on the 23d of April, 1822, the said sheriff sold the said mortgaged premises, at public vendue, to one Samuel Britton, for $8900. That afterwards, on the 6th of- May, 1822, the said Jacob Housel, and John Whiting, Henry Eockafellow, John Brugh, Thomas Ellicott, Eeuben Lee, Mary Gray, Henry Chamberlain, Samuel Eockafellow and Wilson Housel presented to this court their petition, setting forth, among other things, that the said Jacob Housel, after giving the said mortgage, and before the filing of the said bill, had sold and conveyed part of the said mortgaged premises, and that the same were then held as follows: A house, store-house and about -J an acre by John Brugh; a house and about £ of an acre by Thomas Ellicott; a house and about -J an acre by Eeuben Lee; a house and about ¿ of an acre by Mary Gray; a house and about J of an acre by Henry Chamberlain; two lots of about half an acre by Samuel Rockafellow; a lot of about a quarter of an acre by Wilson Housel; and a lot of about three-quarters of an aere by George Hills ; and praying that the said decree might be opened, and the said petitioners made parties to the said suit, and let in to defend the same or to redeem the said mortgaged premises. That, on the said 6th of May, 1822, it was ordered by this court that the said petition and the affidavit thereto annexed be filed, and that the parties interested in the matters therein stated be heard before this court upon the matters and prayer of the said petition, on the 24th day of May then instant, and that Edward Welsted, Esq., sheriff of Hunterdon, do not execute any deed for the mortgaged premises so by him exposed for sale, until the parties should be heard upon the said petition, or this court should make further order respecting the same ; and that a copy of the said order and of the said petition be forthwith served on the solicitor of the complainants and also on the purchaser.
    That, afterwards, on the 29th of May, 1822, an order was made by this court upon the said petition, as follows: (The order .sets aside the said sale made by Sheriff Welsted, and directs the said sheriff to make sale of that part of ihe mortgaged premises not conveyed by the said Jacob Housel before the filing of ihe said bill, without prejudice to the right of the complainants to that part of the said property so conveyed in case the part so as aforesaid to be sold should prove insufficient to pay the debt, interest, and costs due the complainants; and that the costs of this application be paid out of the proceeds of the sale.)
    That, on the 5th of August, 1822, the said sheriff sold that part of the mortgaged premises not conveyed by said bill, to Samuel Britton, for $7100.
    That the proceeds of the said last sale, after deducting, &c., was $6938.80, to be paid on account of the moneys due the complainants for debt, interest, and costs, which, on the 5th of August, 1822, amounted to $8013.16.
    This bill is filed against the said John Brugh, Thomas Ellieolt, and others above named, and prays that they may be decreed to pay the complainants the moneys remaining due to them, or may be foreclosed, &c.; and that the several parts of the mortgaged premises held by them may be sold, to pay, &c.
    On the 3d of April, 1823, a decree pro eonfesso was taken against Brugh, Ellicott, Lee, Gray, Chamberlain, Rockafellow, and Dills. On the same day, an order was made that Wilson Housel file his plea or answer within 30 days after the service of a copy of the said order, or that the bill be taken as confessed against him.
    On the 26th of April, 1823, Wilson Housel put in his answer, admitting the bonds and mortgage, the death of Esther Lowrey and of William McGill, as stated in the bill ; and the death of Aaron D. Woodruff, leaving a will of which he appointed the complainants executors; admitting that the complainants exhibited their bill of foreclosure against. Housel and the decree and execution thereon ; admitting the first sale by the sheriff to Britton, as stated in the bill, but denying that Britton was the highest bidder at that sale, or that the said sale was duly advertised, so far as this defendant knows and has heard, and leaving the complainants to make such proof thereof as they shall be advised; admitting the petition stated in the bill and the proceedings and orders thereon, as stated in the bill; admitting the second sale stated in the bill, but not admitting that the premises were duly advertised or legally sold, but saying that he has been informed and believes, and therefore states, that the said premises so sold, consisted of divers distinct houses, mills, and lots of land, which have been held, and were held at the time of said sale, separately; and that a part of said premises, if sold separately and at a fair price, would have satisfied the said execution ; and that the said Jacob Housel, this defendant, did, by writing signed by him and delivered to the said sheriff twenty days before the time appointed for the said sale, elect the part of the said mortgaged premises to be sold and the order of selling the same; and that if the said premises had been so sold, this defendant believes that the same would have brought the full amount due the complainants on their said mortgage.
    The answer further states that, on the 9th of May, 1815, the said Housel and his wife, the mortgagors, by deed of that date, for the consideration of $38.21, sold and conveyed to this deíendaut a certain part of said mortgaged premises, butted and bounded as follows, (giving the description,) containing 11-lOOths of an acre, with covenants of seizin, and that said Housel had good right to convey the same, and that this defendant should hold the same, free of all former mortgages and other encumbrances, and general warranty, which deed was acknowledged on the 9th of October, 1822; that on the same 9th of May, 1815, the said Jacob Housel, by deed of that date, for the consideration of $133.60, sold and conveyed to this defendant another part of the said mortgaged premises, butted and bounded as follows, (giving the description,) containing 18-100ths of an acre, with full covenants of seizin, and that he had good right to convey the same, and that this defendant might forever thereafter have and" enjoy the same, without the lawful let, eviction or disturbance of any person whatever, and that the same were free of all former mortgages and encumbrances, and general warranty, which deed was acknowledged on the 20th of May, 1820, and recorded on the 9th of October, 1822.
    This defendant further answering says, that he has been informed and believes, and therefore states, that there was some agreement, contract or understanding between the said Samuel Britton and the complainants, or one of them, that they, the complainants, would permit the said Britton to buy the mortgaged premises, not conveyed by Housel before the filing of the said bill, as low as possible, at the said last-mentioned sale, upon his agreeing, at all events, to pay the amount due the complainants on the said mortgage, and that the complainants should allow and permit the said Britton to take such proceedings on the said mortgage, in the name of the complainants, as would enable him to raise the difference between the sum for which he might purchase the said mortgaged premises, and the amount due on tho said mortgage, out of the other premises contained in the said mortgage, which had been conveyed by said Housel before the filing of the said bill, or some other agreement to the like effect; and that the said purchase was made in pursuance of the said agreement, and that the said bill filed by the complainants against this defendant and others is really for the use and benefit of the said Britton, and designed to enable him to grasp the whole of the mortgaged premises, although the part purchased by him is worth considerably more than the whole amount.due on the said mortgage; and the answer insists that the said mortgaged premises, not conveyed by the said Housel, if sold separately, in lots, as was elected and designed by Housel, would have brought more than the whole amount due on the said mortgage, and was worth considerably more; nevertheless, the said sheriff, under pretence that no one would bid for it in separate lots, by the direction of the complainants, put up the whole together, and so sold the same to the said Britton. And this defendant insists that the complainants, having filed a bill against the said Housel alone, upon the said mortgage, without making this defendant and others interested in the premises parties, and having sold a part of the mortgaged premises under a decree obtained in said suit, cannot now resort to the lots held by this defendant; and he claims the same benefit as if he had pleaded the said proceedings in said suit, and submits that the complainants are not entitled to any relief against him. And if the court should be of opinion that the complainants are entitled to relief against him, he insists it can only be upon opening the said decree and sale, or permitting this defendant to redeem the said mortgaged premises not conveyed by Housel before the filing of the said first-mentioned bill, which he offers to do, and prays he may be admitted to do,'upon paying whatever is due thereon for principal, interest and costs, which he prays may be ascertained under the direction of this court; and that, thereupon, the complainants and the said Britton may be decreed to deliver up and surrender the possession of the said premises so sold as aforesaid to- this defendant.
    On the 29th of October, 1845, Maria Schenck exhibited her petition, stating the filing of the bill of Elias D. Woodruff and Thomas L. Woodruff, executors of the will of Aaron D. Wood- . ruff, who was surviving executor of Thomas Lowrey, against John Brugh, Thomas Ellicott, and the other defendants therein named, on the 2d of October, 1822, stating the contents and prayer of the said bill and the proceedings in that suit; that Wilson Housel answered the bill, and that- a decree pro confesso was taken against all the other defendants; that before any further proceedings were had in the suit, Elias D. Woodruff, one of the complainants therein, died, leaving Thomas L. Wood-ruff sole surviving executor of the will of Aaron D. Woodruff, deceased, who was the surviving executor of the will of Thomas Low rey, deceased.
    The petitioner further stated that after the death of the said Elias D. Woodruff, the said Thomas L. Woodruff, surviving executor as aforesaid, assigned to the petitioner the moneys for the collection of which the said suit was instituted, in part payment of certain claims of the petitioner upon the estates of the said Thomas Lowrey and the said Aaron D. Woodruff. That the said Thomas L. Woodruff, surviving executor as aforesaid, has ever since neglected and refused to proceed in the said suit for the collection of the moneys so assigned to the petitioner, and which yet remain due and unpaid. That, by deed'dated March 30th, 1826, Mary Gray, one of the defendants in the suit, conveyed that part of the mortgaged premises held and owned by her at the time of the filing of the bill, to Wilson Housel, by whom the same was sold and conveyed to one Samuel Cooley, who now is seized and possessed thereof, and that Mary Gray, after the execution of the said deed, died. That George Dills, another of the defendants, having conveyed that part of 'the mortgaged premises owned by him, at the time of the filing of the bill, to one Daniel Stiles, also died; and that said Daniel Stiles conveyed that part of the said premises to one Charles Vorhis, who has since conveyed some interest therein to one Peter Vanderbelt. That Thomas Ellicott and Samuel Rockafellow having respectively conveyed awa}1- such parts of the mortgaged premises as were held and owned by them at the time of the filing of the bill, left this state prior to 1830, and that the petitioner is unable to discover where they now reside, if living, or whether they are now living. That one Daniel Van Sickle is now seized and possessed of that part of the mortgaged premises formerly owned by the said Samuel Rockafellow, and that Samuel Cooley, John B. Osmun and John Stockton are now seized and possessed of several portions of that part of the said mortgaged premises formerly held and owned by said Thomas Ellicott.'

      The petitioner prays that leave may be granted to the petitioner to file a supplemental bill in her own name and the name of the said Thomas L. Woodruff, surviving executor as aforesaid, or otherwise, against the said Samuel Cooley, Charles Worhis, Peter Wanderbelt, Daniel Wan Sickle, John B. Osmun and John Stockto.n, to make them parties defendant in the said suit, with proper allegations setting forth the matters and facts aforesaid, together with such other matters, either by way of amendment to the said original bill, or as supplemental thereto, as the petitioner may be advised, and with prayer for such relief in the premises as may be adapted thereto.
    On the reading and filing of this petition, an order was made, granting leave to file a supplemental bill, according to the prayer of the petitioner.
    The supplemental bill was filed November 29th, 1845, by Thomas L, Woodruff, surviving executor of the will of A. D. Woodruff, who was surviving executor of the will of Thomas Lowrey, and Maria Schenck, against John Brugh, Thomas Ellicott, Reuben Lee, Henry Chamberlain, Samuel Rockafellow, Wilson Housel, William Wanderbelt, Samuel Cooley, John B„ Osmun, John Stockton, Daniel Wan Sickle, Charles Worhis, Peter Wanderbelt and Rachel Graves.
    It states the giving of the three bonds by Jacob Housel to ■ Aaron D. Woodruff and William McGill, executors of the will of Thomas Lowrey, and of the mortgage to secure the payment thereof; the death of the widow, Esther Lowrey; the death of William McGill; the death of A. D. Woodruff, leaving a will appointing Elias D. Woodruff and Thomas L. Woodruff executors thereof; the filing of the bill of foreclosure on the 2d of July, 1821, by Thomas L. and Elias D. Woodruff, against Jacob Housel and wife; the proceedings in that suit; the first sale to Britton, for $8900; the petition of Jacob Housel, John Brugh and others, and the order made thereon ; the second sale of the part of the mortgaged premises not conveyed by Jacob Housel, for $7100, to Britton, and the balance remaining due on the mortgage after the application of the proceeds of that sale; the filing of the second bill by Thomas L. and E. D. Woodruff, executors as aforesaid, against John Brugh, Thomas Ellicott and the other defendants therein named, for the sale of the parts of the mortgaged premises severally held by them for the payment of the said balance, and the proceedings in that suit.
    This bill then states, that shortly after Wilson Housel had filed his answer in the said second suit, Elias D. Woodruff died, and that no further proceedings had been had in the said second suit since his death, he being the principal acting executor of the will of A. D. Woodruff, surviving executor of the will of Thomas Lowrey, and that Thomas L. Woodruff, the surviving executor of the will of A. D. Woodruff, neglected to prosecute the said suit. That after the death of the said Elias D. Woodruff, on or about November 21st, 1833, the complainant Thomas L. Woodruff, surviving executor as aforesaid, assigned to the complainant Maria Sehenck the moneys for the collection of which the said second suit was instituted, in part payment of certain claims of the said Maria upon the estates of the said Thomas Lowrey and the said A. D. Woodruff, and delivered the said bonds and mortgage to her. That by deed dated March 30thf 1826, Mary Gray, one of the defendants in the said second suit, conveyed the part of the mortgaged premises held by her, to Wilson House!, who sold and conveyed the same to Samuel Cooley, who now holds the same, and that Mary Gray has since died. That George Dills, another of said defendants, conveyed the part held by him, to Daniel Stiles, and afterwards died, and that Stiles conveyed the same to Charles Vorhia, who has since conveyed some interest therein to Peter Vanderbolt. That Thos. Ellicott and Samuel Roekafellow having, respectively, conveyed the parts of the mortgaged premises held by them, left this state prior to 1830, and that these complainants are unable to discover where they reside, if living, or whether they are living. That Daniel Van Sickle is now possessed of that part of the mortgaged premises formerly owned by said Samuel Roekafellow, and that Samuel Cooley, John B. Osmun, and John Stockton are now possessed of several portions of that part of the mortgaged premises formerly owned by Thomas Ellicott. That the complainants are informed that William Vanderbelt has become seized of or entitled to the whole or a part of those portions of the mortgaged premises so owned by John Brugh and Reuben Lee. That Rachel Greaves holds a mortgage given by one John B. Osmun and wife, on that parcel of the mortgaged premises owned by Thomas Ellicott, as aforesaid, and that William Vanderbelt holds a mortgage given by Charles Vorhis, and one given by Samuel Cooley, on other parcels of said mortgaged premises formerly owned by George Dills and Mary Gray, as aforesaid.
    That the balance of $1074.36, with large arrears of interest, still remains due these complainants.
    ■ The bill has the usual prayer for foreclosure and sale, and for process.
    To this bill, an appearance was entered for the defendants, John Brugh, William Vanderbelt, Samuel Cooley, John B. Osmun, John Stockton, Daniel Van Sickle, and Charles Vorhis.
    Publication was ordered as to Thomas Ellicott, Reuben Lee, Henry Chamberlain, and Samuel Rockafellow,
    On the 18th of March, 1846, the demurrer of John Brugh, William Vanderbelt, Samuel Cooley, John B. Osmun, John Stockton, and Daniel Van Sickle, was filed to this supplemental bill. The causes of demurrer assigned are, that the bill is filed, by leave, as á supplemental bill, whereas, the facts set out in it are not material to the matters in controversy in the original suit, as the same are set out in the supplemental bill; that this bill is not any addition, merely, in material matters, to the original bill, in order to supply some defect in it, but is an original bill in its frame and character, and not a supplemental bill, and is, therefore, informal, irregular, and improperly exhibited.
    Another cause of demurrer assigned is, that this bill is filed as supplemental to a suit in which one of the complainants died, more than twenty years ago, and the said suit has never been revived by any order of this court.
    Another cause of demurrer assigned is, that it appears, by this bill, that Thomas L. Woodruff, one of the complainants, assigned all his interest in the bonds and mortgage, which are the sole matter of controversy in the suit, to Maria Schenck, the other complainant, several years before the bill was filed, and thst the said Woodruff, therefore, having no interest in the suit ought Slot to be a party complainant, and that there is an improper joinder of parties eomplainaut.
    And further, that it appears by the biJi that the said Thomas L. Woodruff, the complainant in the original suit, has neglected and refused to prosecute the same, and now exhibits a supplemental bill in the same suit, for the same subject matter, which these defendants are advised is irregular and unlawful.
    Another cause of demurrer assigned is, that the bill is filed, in part, for the purpose of bringing new parties defendants in the original suit before the court, who became interested in the premises in question after the original bill was filed, which is unnecessary, and subjects these defendants to great expense; and that all the relief prayed for in the supplemental bill, and full relief in the premises, independent of what is therein prayed for, could have been granted and afforded in the original suit, if the complainants are entitled to any.
    Another cause of demurrer assigned is, that Maria Schenck has no right to exhibit the supplemental bill, and that upon the facts set forth in this bill, she could only come before this court for relief by original bill, if at all, considering that some twelve years had elapsed, after the bonds and mortgage are said to have been assigned to her, as set out in said bill, before it was exhibited.
    Another cause of demurrer assigned is, that the facts and case set out in this bill are within and would be barred by the statute of limitation at law, and that these defendants have been in the peaceable and undisturbed possession for more than twenty years before the said bill was exhibited of the premises, as their own, which are sought to be foreclosed by the said bill, and without any acknowledgment during that time of any right or title to the same in the complainants, or either of them, or any one else..
    Another cause of demurrer assigned is, the lapse of more than twenty years, not satisfactorily accounted for, between the filing of the original bill and the exhibiting of the said supplemental bill.
    Another cause of demurrer assigned is, that David Williams, Isaac White, William Cooley, William Thomson, Isaac Johnston and Jacob Moore, of the county of Hunterdon, at the time the said supplemental bill was filed, were interested in and in possession of and claimed title to certain parts of the premises described in the said bill, and ought to be made parties. The general cause of want of equity is then assigned.

      A. Wurts and P. D. Vroom, in support of the demurrer,
    cited Story’s Eq. Pl., § 790, 332, 3; 1 Hoff. Ch. Pr. 393, 7; Mitford Pl. 34, 55; Hinde’s Pr. 42, 45; 3 Atk. 370; 1 Hoff. Ch. Pr. 402, note 7, 405; Story’s Eq. Jur., § 1050,1; Story’s Eq. Pl. 351, a, note 2; Ib., § 343, 615, 616; 17 Ves. 144; 2 Mad. Rep. 53; Story’s Eq. Pl. 358, § 351; Ib., § 349, note 5, § 7, 19, § 509, note 5; Ib., § 194, 338; 1 How. Rep. 161; 9 Pet. 416 ; Story’s Eq. Pl., § 484, 503, note 1, § 756, note 5, 757, note 3, 759; 1 Green’s Rep. 68; 2 South. 721; 2 Story’s Eq. Jur., § 1520, a, and notes ; 4 Kent’s Com. 188 ; 3 Harr. 269; Angell on Limitations 25; 2 Scho. and Lefroy 630, 6; Ambler 645; 3 Bro. Ch. 639; 2 Jac. and Walk. 188, 191; 4 Burr. 1962; 2 Cond. Eq. Rep. 137.

      F. T. Frelinghuysen, contra,

    cited Story’s Eq. Pl., § 332, 3; 1 Hoff. Ch. Pr. 397; Mitford 62, 3; Story’s Eq. Pl., § 790, 1, 229, 332, 4, 338, 340, 343, 885; 2 Greenl. Ev., § 431; 3 Bro. Ch. 639; 6 John. Ch. Rep. 663; 4 John. Ch. 287.
   The Chancellor.

A decree pro confesso was taken against all the defendants to the original bill, except Housel, twenty-three years before the filing of the supplemental bill; and Housel answered the original bill twenty-two years before the filing of the supplemental bill; and no step has been taken in the cause in the meantime. The supplemental bill is against some of the defendants in the original suit and against other persons who have become alienees from others of said defendants since the said decree pro confesso was taken. There is nothing in what has occurred since the filing of the original bill making a supplemental bill necessary. The only object of it, therefore, must be to avoid the effect which the lapse of time might have upon the original suit or upon a now original bill. The complainant cannot be permitted thus to relieve himself from the effect of his own laches.

Demurrer allowed.


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    ABRAHAM STEVENS, JR., v. PETER M. RYERSON.
    1. In May, 1837, A, being about to raise his dam to a height that would pause the overflow of B’s land, agreed to buy B’s land, and to pay for it on the 1st of April, 1838, the day fixed for the delivery of the deed. On the same day, a further agreement was made between them that, as a compensation for the damages B might sustain until the completion of the agreement "o buy, B should occupy and use certain lands of A. In the fall of 1837, A raised his dam, and B took possession of the said lands of A. In October, 1838, B tendered the deed ; but A did not pay, and the deed was not delivered. In 1844, B filed his bill, praying that A might be decreed to pay by a day to be fixed, and that, on his failing to do so, the said agreement might be canceled, and A be directed to lower his dam. An order was made that A pay by a day fixed, or that the agreement be canceled. The order prayed as ¿o lowering the dam was denied.
    2. A court of equity may decree the cancellation of an instrument, though it has become a nullity, on the ground that its existence may be a cloud on a party’s title, or may subject him to litigation at a future period, when the facts may have become involved in obscurity.
    Peter M. Ryerson, in May, 1837, being about to raise his dam in the Ramapo river to a height, that would cause the water to overflow a part of the farm of Abraham Stevens, Jr., lying on both sides of the river, treated with Stevens for the purchase of his farm, with other lands of Stevens. On the 15th of May, 1837, articles of agreement, under seal, were executed by and between them, by which Stevens agreed to deliver a good and sufficient deed of conveyance on the 1st day of April, 1838, and Ryerson agreed to pay, on that day, $4500. Ryerson paid ten dollars as part of the consideration money, and the receipt of it was acknowledged in the agreement. After the execution of the articles, and on the same day, a further agreement was made between them, and endorsed on the articles, by which it was agreed that, in lieu of, and as full compensation for the damages sustained, or that might thereafter be sustained by Stevens until the completion of the said contract, by reason of raising the dam, Stevens might use and occupy certain lands of Ryerson therein described, such use to continue until the fulfillment of the said contract.
    In the fall of 1837, Ryerson raised his dam, so that the water of the pond overflowed about twenty acres of the land so agreed to be sold and bought, and has ever since maintained the dam at that height. On the 9th of October, 1838, Stevens tendered a deed to Ryerson. Ryerson admitted the deed was correct, but did not take it, alleging that he had not the. money then, but promised to pay half of it in two weeks, and desired Stevens to wait for the residue till the spring following, promising to pay it then.
    On the 11th of April, 1844, Stevens filed his bill against Ryerson, stating the above stated facts, and that, since tendering the deed as above stated, he has frequently applied to Ryerson to pay the money and take the deed, but that he has constantly declined to pay the money, promising always to pay it at some future time.
    The bill states further, that the complainant has frequently requested Ryerson to lower his dam so as not to overflow the said land, or to pay the said money; but that he has declined to lower the dam, and neglected to pay the money and take the deed. That Ryerson is insolvent, and unable to pay any damages which might be recovered against him for overflowing the land, but persists in keeping the dam to the height which causes the overflow.
    The complainant further states in his bill that, so long as this contract is outstanding, he cannot sell his farm and give a good title to it, because of the said articles of agreement; and that he is advised that he has no remedy but in this court, where a specific performance of the said agreement can be decreed, or the same decreed to be given up and canceled, and the defendant be decreed’ to lower his dam.
    The bill prays that the defendant be directed to pay the money and take the deed, by a short day to be appointed by the court or tliat, on failure of payment at the time so fixed, the said agreement may, by decree of the court, be canceled, and the complainant be relieved therefrom, and that the defendant may be directed, by order of the court, to lower his dam, so as not to overflow, &o.; and that the defendant, his agents, &e., be then enjoined from overflowing the complainsnt’s land.
    The defendant having failed to answer, witnesses were examined and documents produced to prove the allegations of the bill.
    The cause was brought to a hearing on the bill and the depositions and exhibits.

      A. S. Pennington, for the complainant.
    The bill is with a double aspect; to enforce performance of the agreement to purchase; and if the defendant will not perform, then that he be compelled to restore the complainant to his original position by taking down his dam. We do not ask an injunction now, but if, after the time the court shall give him to pay the money, he fails to do so, then we ask to be restored to oar original position. True, by the supplemental agreement Stevens was to occupy certain lands in lieu of damages, and has occupied them till this time. We do not ask for damages; but are things always to remain in this state ? We cannot sell, for there is a cloud on our title. Ryerson cannot perform; he cannot pay. Seven years elapsed before bill filed, and three years have run since, and only $ 10 paid on the agreement.
    We ask the court to fix a specific time within which Ryerson shall pay, and that, in default thereof, he be compelled to lower his dam.
    He cited Drewry on Inj. 260; 10 Ves. 192; 4 Sim. 13; 8 Ib. 193; 1 Ves. 542; 2 Ib. 543; 2 Green’s Ch. 353; 1 Mylne and Keen 155; 6 Eng. Ch. Cond. 558; 2 Atk. 83.

      B. Williamson, contra.

   The Chancellor.

If it would be within the proper exorcise of the power of this court to make an order which, by its terms, would, either directly Or indirectly, compel the defendant to lower his dam, is this a case in which the power should be exerted? The dam was raised with the assent of the complainant, he relying on the agreement of the defendant to purchase his farm; and an arrangement was, at the same time, made between them, by which the complainant was to occupy certain lands of the defendant in lieu of, and as a full compensation to him for the damages he might sustain by the raising of the dam, until the completion of the contract; the use of the said lands by him to continue until the fulfillment of the contract. The dam was raised shortly after the agreement to purchase was entered into, and before the time fixed for the delivery of the deed and payment of the money. The complainant took possession of the lands he was to use as a compensation for damages, and has occupied them ever since, and still occupies them. The deed was not tendered until the fall of 1838. The defendant promised to pay half the purchase money shortly, and desired the complainant to wait until the following spring for the residue. Matters remained in this situation for seven years from the date of the agreement, except that the complainant frequently applied to the defendant to pay the purchase money and take the deed.

Under these circumstances, I think the court should not interpose by way of injunction, or order in the nature thereof.

But should the defendant be permitted to delay indefinitely the fulfillment of his agreement to purchase, because the complainant took possession of lands, the use of which was to be in lieu of damages, and which use was to continue until the fulfillment of the agreement? I think not. It would be a harsh construction of the second agreement to say that it bound the complainant to wait indefinitely the pleasure of the defendant as to the fulfillment of the agreement to purchase, and that the complainant’s agreement to sell should stand good against him as long as it suited the convenience of the defendant. This could not have been the meaning and spirit of the second agreement, and it is just and equitable that a limit should be fixed within which the defendant should pay the money, in fulfillment of his part of the agreement, or the agreement cease to bind the complainant. If it be said that on the tender of the deed and the omission of the defendant to pay, the agreement for the sale became null, and ceased to bind the complainant, it may be answered that a court of equity may decree a delivery and cancellation of an instrument, though it has become a nullity, on the ground that its existence may be a cloud on a party’s title, or may subject him to litigation at a future period, when the facts may have become involved in obscurity. 2 Story’s Eq.; § 705.

In this case, as effected by the second agreement, the danger that the complainant might be subjected to future litigation, after an indefinite lapse of time, particularly if he continues to use the lauds he is using in lieu of damages, (and I do not see that he is bound to give them up,) is apparent. And if he should 53ue at law for damages, he would be subjected to embarrassment while the agreement to sell exists and he continues to use the lands ho is using in lieu of damages. The defendant has put the complainant in this position by his failure and fault in not complying with his agreement to purchase, and the complainant should be relieved from this position.

Part of the relief prayed by the bill, that is to say, that a timo be fixed within which the defendant shall pay the money and take the deed, and that in default thereof the complainant’s agreement to sell be decreed to be no longer binding and be given up to be canceled, will be given. Beyond that, the complainant will be left to his remedy at law¿

Order accordingly.


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    SUSAN WRIGHT v. ELIAS W. CONOVER.
    The statutes of New Jersey, limiting actions for land, do not apply to dower.
    Susan Wright, widow of Barzillai Wright, late of Trenton, deceased, exhibited her bill on the 9th of July, 1846, against Elias W. Conover, stating that the said Barzillai was, in his lifetime, and during the time he was married to the complainant, seized in fee or in tail of divers freehold estates, situated in the county of Mercer, and that he died on or about March 1st, 1838, leaving the complainant, his widow, him surviving, whereby she became entitled .to her dower in the said freehold premises. That in the lifetime of the said Barzillai, a part of the freehold estates of which he was seized was levied upon by the sheriff of Hunter-don, by virtue of divers executions in his hands against the said Barzillai, and that, on or about November 1st, 1820, the said sheriff sold at public sale a part of the freehold estate of the said Barzillai, consisting of about fifty-five acres, situated in the township of Lawrence, in the county of Mercer, which said part was then and there bought by one Mahlon Milner, and that Milner, afterwards, on or about November 20th, 1820, received a deed therefor from the said sheriff, and entered into the possession thereof. That the title to the said premises has since passed by various conveyances to Elias W. Conover, who now holds the same in fee simple, as the complainant is informed and believes, subject to the right of dower of the complainant therein. That the said tract of land is now in the actual occupancy and possession of one Aaron Tindall, as a tenant, as the complainant is informed and believes, of the said Conover. That the title deeds and evidences and writings relative to the said premises and estate have come into the hands and possession of the said Elias W. Conover. That on or about March 1st, 1846, the complainant caused a written notice to be served on the said Conover to set off or cause to be set off and assigned to the complainant, and let her into the possession and enjoyment of one-third part of the said freehold estate, as and for her dower aforesaid, bat that he refuses or declines so to do, and refuses to produce the title deeds, evidences and writings, or any of them, relative to the said freehold estate; wherefore the complainant, is unable to proceed at law to establish her said demand.
    The bill prays that Conover may answer, &c., and discover and set forth a full and true-description of such freehold estate, with all the circumstances and particulars thereof or relative thereto; and that an account may be taken of the rents and profits of the said freehold estate, which have accrued since the said demand of dower; and that one-third part thereof may be paid to her; and that one-third part of such freehold estate ¡nay he assigned and set off to her for her dower, or other widow’s estate; and that she may be let into the immediate possession and enjoyment thereof, and decreed to hold the same for her life; and that Conover may be decreed to produce all title deeds, evidences and writings relative to the said freehold estate, in order to effectuate the purposes aforesaid.
    To this bill the defendant has pleaded in bar, that the said Barzillai Wright died more than twenty years before the filing of the complainant’s bill, or the serving this defendant with process to appear and answer the same; and that if the complainant ever had any right or title to dower or thirds of and in the said premises, or ever had any cause of action against him, for or concerning any of the matters in the bill mentioned, which he doth in no sort admit, the said right or title, and the said cause of action, did accrue more than twenty years before the filing of the complainant’s bill, or the serving this defendant with process to appear and answer the same; and, therefore, he doth plead the act entitled, “ An act for the limitation of actions,” passed February 7th, 1799, and prays the benefit of the said statute for the limitation of actions.
    A replication was put in to this plea, but afterwards it was agreed between the solicitors, by writing, filed with the clerk, that Barzillai Wright died July 17th, 1823; and that the truth of the plea was, therefore, admitted by the complainant’s solicitor; that the replication be wilhdrawn, without costs, and that the cause proceed to hearing on the bill and plea ; and that if, upon the hearing, the plea be allowed, it be considered as proved, and a final decree made thereon.

      C. S. Green, in support of the plea.
    He cited 1 Harrison’s N. J. Rep. 107; 1 Constitutional Rep. of S. C. 112; 3 Dessau. 555.

      W. Halsted, contra.

    He cited Park. on Dower 311 — 12; 3 Kent’s Com. 70, notes; 1 Swift 85; 4 N. Hamp. Rep. 109; 2 Gill. and John. 468 ; 8 Johns. Rep. 103; 1 Dev. and Bat. 213; 10 Yerger 339; Co. Lit. 115, a; 7 Metcalf’s Rep. —; 9 Ves. 222; 2 Ves., Jr., 122; 2 Bro. Ch. Rep. 620; 1 Cruise’s Dig. 159; Co. Lit. 36, a; 7 Johns. Rep. 247 ; 4 Mass. Rep. 388 ; 9 Ib. 13; 16 Ib. 293; 19 Johns. Rep. 197; 20 Ib. 411; 2 Show. 198; Bull. N. P. 117; Angell on Lim. 381, 379, 404, 415, 452; 2 Allison 72, 74; Gilbert on Tenures 26; Watkins on Descent 100; 2 P. Wms. 703-4; Cro. Jac. 111.
   The Chancellor.

I am of opinion that the claim for dower is not within the spirit of the statute of limitations, nor within its policy, or the evil intended to be remedied by it, and that the legislature never intended to include dower within its provisions, or supposed it was so included.

Dower has a limitation in the nature of things. It is the use of a third part of the lands during the life of the widow only. In a large proportion, perhaps a majority, of the cases, death puts an end to the enjoyment, and to the claim of dower, within'twenty years from the death of the husband. There is no consideration of public policy requiring any other limitation. It is a claim of á peculiar nature, entirely different from claims for debt and from asserted titles to land. The amount of a debt is yearly increasing, and there is a policy in limiting a time within which it should be presumed paid. If one has title to land which another is holding adversely to him, there should be a limitation of time within which he should bring his action for it. The land may become more valuable by improvements put upon it by the person in possession ; and the taking it from him after the lapse of years may inflict a heavily increased loss. But the value- of the right of dower to the widow, and the burden of it to the owner of the land, is becoming less and less every year of her life. The alienee of the husband can put what improvements he pleases on the land: the widow gets dower only according to the value of the land at the time of the alienation.

A purchaser from the husband knows he buys subject to the wife’s inchoate right of* dower, and the widow can recover damages — that is, the value of the dower — only from the time she demands her dower. If she fails to demand her dower for twenty years, the purchaser has been relieved of the burden during that time Does that furnish any reason why he should be relieved from it for the remnant of her life ?

Children, where the father died seized, may, in consideration of the mother’s right of dower, and by arrangement with her, have supported her for twenty years, and may then fail to support her. Is she barred of her right to have her dower set off to her ?

At law, if a dowress dies before her right is established, her personal representatives have no remedy for the mesne profits. The rule is the same in chancery, as against a purchaser from the husband.

Neither the title of the heir-at-law, nor that of the alienee of the husband, is adverse to the title under which the widow claims. They all claim under the title of the husband. The estate of the widow is a continuation of that of her husband, and, upon assignment, she is in by relation, from her husband’s death. 4 Kent’s Com. 62.

The right to dower is a mere right, which can be neither aliened nor sold on execution. The law casts the freehold on the heir, and the widow has no estate in the land until her dower is assigned. 4 Paige 448; 17 John. Rep. 168, 9; 20 Ib. 411.

She has no estate or right of entry in the whole, and none in any particular part until her dower is assigned by metes and bounds, and, when that is done, the estate does not pass by the assignment, but she is in, in intendment of law, of the seizin of her husband. 4 Kent’s Com. 68.

It is said that dower is within the letter of our statute of limitations.

If it were within the letter, yet if it be not withiu the spirit of the statute, it should not be subject to it.

But is it within the letter of our act? Sections 9 and 10 of our act for the limitation of actions, provide that no person having any right or title of entry into any lands, shall make entry therein but within twenty years next after such right or title— L e., right or title of entry — shall accrue, and that every action for lands, real, possessory, or mixed, shall be brought within twenty years next after the right or title thereto — i. e., the right or title of entry — or cause of such action, shall accrue.'

The two sections together, amount to no more than this, that no action for lands founded on a right or title of entry, shall be brought after twenty years, &c. The widow has no right or title of entry into any lands until after the dower is assigned.

The right is a mere inchoate, contingent charge, and it remains contingent after the husband’s death, at least as against a purchaser from the husband. She cannot bring ejectment for it — ejectment is a mixed action for lands, and satisfies that word in our statute — and if she dies before she can compel an assignment, the holder of the lands is relieved, and her personal representatives cannot recover the mesne profits from the husband’s alienee; and, during her life, if she makes no demand of her dower from the husband’s alienee, she cannot recover the value thereof.

The statute of 21 Jac. 1, which enacts that “no person shall make entry upon any lands but within twenty years next after his right or title shall first accrue,” and the statute of New York, which enacts that no action for the recovery of any lands shall be maintained unless the plaintiff, his ancestor, &c., was seized or possessed thereof within twenty years, are as broad in their effect as our statute, and yet are held not to include dower; and so are the statutes of several other states, which are held not to include dower.

Dower is not included because the widow has no right or title of entry until her dower is assigned by metes and bounds.

By a late statute in New York, dower has been subjected to limitation. How is it done? It is by requiring dower to be demanded'within twenty years from the death of the husband. So by a late statute in England, 3 and 4 William IV., ch. 27, dower has been limited. It is done by providing that no suit for dower shall be brought within twenty years from the death of the husband. This shows that dower is not within statutes limiting actions for lands founded on right of entry or title, and in which the doctrine of adverse possession is involved.

If our legislature shall be moved to enact such a limitation of the suit or demand for dower, they will have an opportunity of deciding whether dower is within the policy of statutes of limitation and whether there is any necessity or propriety of fixing a limitation.

Dower is highly favored. It has been well said that dower is not only a legal right, but a moral right to be provided for and have a maintenance and sustenance out of the husband’s estate. That the widow is in the care of the law, and a favorite of the law. 1 Story’s Eq., § 629.

Our legislature have provided that where the husband did not die seized, as where he aliened in his lifetime, which is the case here, she may sue for and recover her dower, with damages, that is to say, the value of her dower, from the time she demands her dower. There is no limitation as to the time of the demand. She may demand it at any time during her life. This bill goes for the value of the dower since the demand of dower, and for a third of the land to be now set off, and the plea is to the whole bill. The demand of dower was not made until March, 1846. Ho action for the value of the dower accrued until then, and then only for the value after that time. By what rule can time, elapsed before an .action accrues, be a bar to it? And if after demand she is entitled to the value of the dower from that time, which is equivalent to the dower itself, why is she not entitled to the dower itself from that time ? Can she be confined to an action for the damages or value?

This shows the incongruity which would arise from construing our statutes limiting actions for lands to apply to dower.

Plea overruled.

Reversed, 2 Hal. Ch. 613.


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    SOLOMON ANDREWS v. CHARLES FORD ET AL.
    Re-taxation of costs.
    An injunction was allowed in this case on the filing of the bill, lia January, 1845, a demurrer to the bill was filed by the defendants, which was overruled, with costs, in April, 1845.
    In February, 1845, on affidavit that Benjamin Maurice and Charles F. Maurice, two of the defendants, resided in the county of Ulster, in the State of New York, and on motion of counsel for the defendants, a dedimus potestatem, to take their answers was ordered. In July, 1845, the answer of the said defendants was put in in the usual way, having been sworn to before a master in this state. In March, 1846, the injunction was dissolved, with costs. The replication was filed in December, 1846. The defendant’s solicitor set thecause down for hearing at the June Term, 1847. On the 3d of July, 1847, an order was made, on motion of the solicitor and counsel for the defendants, “ by and with the consent of the solicitor of the complainant,” that the complainant’s bill be dismissed, with costs, to be paid by the complainant.
    In taxing the defendants’ costs the clerk taxed costs for their demurrer, and for their motion for the commission or dedimus potestatem, and for drawing and sealing the commission, and for notice of hearing, rule for hearing and setting down cause, and for enrolling proceedings, and for four term fees.
    A motion was made before the Chancellor to re-tax the costs.

      J. S. Green, for the motion.
    P. D. Vroom, contra.
   The Chancellor.

The costs taxed for the demurrer must be struck out. The several items taxed for the costs of the dedimus potestatem to take the answer of the non-resident defendants must be struck out, in analogy to the costs of commission to examine witnesses abroad or in another state.

It is for the complainant’s solicitor to set the cause down for hearing; on his failing to do so, his bill may be dismissed, with costs. The costs taxed for noticing the cause and for the rule for hearing and setting down the cause must, therefore, be struck out.

The 51st section of the Chancery practice act provides, that when any suit shall be dismissed in, pursuance of any consent or agreement of the parties for that purpose, no enrollment of the proceedings shall be necessary, nor shall any fees be allowed or taxed therefor; but either party may, at his own expense, require the same to be enrolled. The order dismissing the bill, in this case, states that it was made by and with the consent of the solicitor for the complainant. The fees for enrolling, therefore, cannot be taxed against the complainant. Four term fees are taxed, including the term fee taxed on the dissolution of the injunction. The act to regulate fees provides that no more than three term fees shall be allowed in any cause. The four term fees taxed are all term fees in this cause. One of them must be struck out. The complainant’s costs on overruling the demurrer must be taxed against the defendants, and be deducted from the amount of the costs taxed against the complainant.