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    LEWIS E. DAVENPORT AND CORNELIUS CRAWFORD, JR. ADMINISTRATORS, &c., OF CALVIN COOK, DECEASED, v. HENRY COLE AND OTHERS.
    An improvident agreement, made for a consideration grossly inadequate, by one of great imbecility of mind, with another whose position in relation to him conferred undue influence and control over him, will be set aside.
    The bill in this case was filed on the 27th of June, 1845, by the administrators, &c., of Calvin Cook, late of Bergen county. It states that Cook died intestate, on the 20th of May, 1845, owning and being entitled to considerable personal estate. That, on the 19th of June, 1845, administration of his personal estate was granted to the complainants. That the complainants have been informed and believe that Cook, in his lifetime, was indebted to the estate of John Robinson, late of the city of New York, in a sum exceeding $2000. That the said Robinson died intestate, in 1822, in New York; and that said Cook, with Elizabeth Robinson, widow of said John Robinson, and sister of said Cook, administered on the estate of said J. Robinson, deceased, in New York; and that Cook became possessed of the personal estate of said Robinson to an amount, exceeding $2000, which remained in his hands unaccounted for until his death. That on the 25th of February, 1834, an order was made by the surrogate of New York, requiring the said Cook and Elizabeth Robinson to account, which they neglected to do, and a further order was thereupon made that the administrators’ bond given by them should be prosecuted. That Cook, having information of the Last order, thereupon left New York, and returned to New Jersey, where he resided, and continued to reside, until his death.
    That the complainants are advised by their counsel, and believe and insist that, by means of the proceedings aforesaid, the said administration bond was forfeited, and that the same is now due, and is, and has been from the said year 1834 until the death of said Cook, a subsisting demand against him, and now constitutes a legal demand against his estate.
    That the complainants are informed, believe, and charge that said Cook was a man of large property, having personal estate to a great amount; that the same was variously estimated, by persons acquainted with his estate and circumstances, at from $10,000 to $50,000. That the.complainants believe and charge that it was of the value of $15,000 and upwards. That he was never married, and left no near kin, except two nieces, children of the said Elizabeth Robinson, who are his only heirs-at-law, the oldest of which, Susan EL, is now the wife of the complainant Lewis E. Davenport, and the youngest of which, Sarah E., is now the wife of the complainant Cornelius Crawford, Jr.
    That for several years before August, 1841, Cook was subject to occasional despondency of temperament, and exhibited occasional mental aberrations, and was deranged in his intellect.
    That about that time, and before the 1st of November, 1841, his mind became entirely enfeebled, and he was deprived of his reason and understanding, so as to be incapable of governing and taking care of himself, and wholly incompetent to manage his pecuniary affairs.
    That said Cook was very penurious and miserly in his habits, and scarcely allowed himself the ordinary comforts of life, either in clothing or provisions. That for some time previous to the 1st of August, 1841, he was in the habit of wandering about the country, stopping at houses, the occupants of which were strangers to him, and soliciting them to take him in. That he sometimes slept in barns. That some time in August, 1841, the said Cook, by some means unknown to the complainants, found his way to the house of Henry Cole, the defendant, then and now residing in Saddle River township, in the county of Bergen, in whose possession the said Cook was afterwards found. That Cook and the said Cole, and the family of said Cole, had never, before that time, been at all acquainted, but were entire strangers to each other. That Cole, for some reason, then took Cook into his house, and Cook continued to reside with said Cole and his family until he (Cook) died. That after Cook came to the house of Cole, as aforesaid, he was usually kept in the house, or, if he went out, did not, at any time, go beyond the yard or enclosure of said Cole, and, having no near relations in the country, except the wife of the complainant Crawford, and she living in the State of New York, very few persons called to see him, and very little was known of his situation.
    That said Crawford’s wife, having learned that her uncle — the said Cook — was at the house of said Cole, went there to see him, and was informed by said Cole, or his family, that he did not go out of the room in which he was kept, and that the family did not wish him to see any of his friends or acquaintances, for he acted so bad that they could not control him; and she was permitted to have but a momentary interview with him. That in this interview he did not, apparently, recognise her, although he had, before, known her most intimately.
    That the said Sarah E. Crawford, at that time, proposed to take said Cook to live with her, and offered to do so, but Cole declined to allow it, saying that he had undertaken or agreed to take care of him during his life, or words to that effect.
    That when Cook came to the house and possession of Cole, as aforesaid, there were large sums of money due him from various persons in New York and New Jersey. That, among others, there was due to him from the commercial house and firm of Richard S. Williams & Co., of the city of New York, a sum exceeding $8000; from Walter Kirkpatrick, of New Jersey, exceeding, with interest, $2000, for which Cook held the note or notes of said Kirkpatrick. That there was then also due to Cook from Andrew B. Cobb, of Morris county, New Jersey, $1000 and upwards, for which Cook held said Cobb’s note or bond, or the note or bond of said Cobb with some other person or persons joint promissors or co-obligors with him. And that the complainants have reason to believe, and do believe, that other debts of considerable amount were then due and owing to Cook, for which he was then in possession of securities or evidences of indebtedness, but that the complainants, for want of evidence, are not now able to specify the same.
    That when Cook found his way to the house, and came under the control of Cole, as aforesaid, besides the securities for money and evidences of indebtedness aforesaid, he had in his possession a considerable sum of money, more than $150, and, as complainants believe, $300.
    The complainants charge, that on or before the time when Cook came to Cole’s, as aforesaid, Cole ascertained that Cook possessed abundant means to pay for the expenses of his maintenance ; and that, at, that time, or shortly afterwards, he discovered that Cook not only possessed such means, but also that he was a man of large estate in money, and securities for money, and, considering the state of imbecility and derangement of mind under which Cook was evidently laboring, conceived the design of fraudulently dispossessing him of his property and appropriating it to his own use; that in pursuance of such fraudulent design, Cole, a short time after he got possession and control of the person of Cook, as aforesaid, went to the said Richard S. Williams & Co., and having, or pretending to have, some assignment or authority to collect said debt due from them to Cook, and being in possession of their said note for the same, the more effectually to carry out his said design, induced the said Williams & Co. to change the security for the said defendant, and actually gave up to them the said note, and received for the amount of principal and interest due on it, and for other money, a bond and mortgage made to the said Cole, in his own name, and for his own benefit; and the complainants are informed that the said bond and mortgage are for the sum of $11,000 ; and they believe and charge that the same were given for the amount due on the said note of Williams & Go., and for other moneys-which Cole had received belonging to said Cook, or which was-due from said Williams & Co. to said Cook.
    That Cole, further in pursuance and execution of his said fraudulent design, after he got possession and control of the person of Cook, but at what particular time the complainants are ignorant, having, by some means unknown to the complainants, got possession of said note or bond given by said Cobb to said Cook, and pretending to be the owner thereof by an-assignment of the same, or to have authority from Cook to collect or seltle the same, induced Cobb to take up the same, and, in- lieu thereof, to execute and deliver to him, Cole, a new bond, or other security, in his own name, and for his own use, for the amount due thereon, or the greater part thereof, but the complainants are ignorant of the date of the said last-mentioned bond or security.
    That Cole, further in pursuance of his said fraudulent design, having, by some means unknown- to the complainants, obtained possession of the said notes of W. Kirkpatrick, held by Cook as aforesaid, called on Hugh Kirkpatrick, the administrator of said W. Kirkpatrick, who was then dead, and represented himself to be the owner of said notes by pretended assignments or endorsements thereof from Cook, and demanded payment thereof; and that an arrangement was then made, as the complainants are informed, by which Cole received, in his own name, and for his -own use, in part payment of the principal and interest due on said notes, an assignment of a bond made by one Samuel S. Doty, of Somerset county, New Jersey, to said Hugh Kirkpatrick, administrator as aforesaid, dated April 24th, 1843, conditioned for the payment of $2000, with interest, and also an assignment in his own name, of a mortgage given to secure said bond, by said.Doty to said administrator, and for the residue of the principal and interest due on said notes, which the complainants charge amounts to $800 and upwards, Cole received the money from said administrator, or some other security.
    The complainants charge that Cole, when he made the said several arrangements with Williams & Co., Cobb and Kirkpatrick, and the said securities for money due to said Cook were changed, as aforesaid, received, Rom all or some of them, payments on account of principal and interest, or both, but of the amount the complainants are ignorant and pray a discovery.
    That the complainants have reason to believe that Cook, when he carne into the custody and under the control of Cole, as aforesaid, was possessed of money and securities for money other than those before mentioned, and they pray a discovery thereof.
    That while Cook was in the custody and under the control of Cole, as aforesaid, he was afflicted with a fit of apoplexy or palsy, terminating in partial paralysis, and that Cook was not, at any time after he came to the hands of Cole, of sound and disposing mind, or of sufficient capacity to manage his pecuniary affairs, or to transact any business whatever; and that any agreement made by him with Cole touching his property, or any authority given-by him touching the same, must have been obtained by Cole from him by reason of his imbecility and ineompeteney to do business, and were fraudulent and void.
    The complainants are informed and believe that shortly be • fore the death of Cook, and on or about June 9th, 1845, a person who was formerly acquainted with Cook, and resided in the same neighborhood with him, called at the house of Cole for the purpose of seeing Cook, and inquiring into his condition and health. That Cole was absent. That in answer to inquiries of , the person so calling, the wife of Cole said that since Cook had been there he had for part of the time been deranged, and that sometimes he did not appear to know anything; and that he was then an idiot; that he was well, but did not pretend to go out; that it disturbed him so much, and made him so ugly, to see any of his acquaintances or other persons, that Mr. Cole had given orders that no person should be allowed to see him. That the said person so calling, though he represented himself to be an old acquaintance, and was. anxious to see Cook, was not allowed to see him.
    That immediately after they were appointed administrators, the complainants called on Cole for the purpose of inquiring after the estate of Cook and obtaining possession of it. That in answer to questions then put to Cole, he stated that Cook came to his house the first week in August, 1841 ; that he then kept a tavern; that Cook was a perfect stranger to him, and in a miserable condition; that he was ragged and dirty, and asked for something to eat. That something was got for him; that he refused to eat it, and wanted some other kind of victuals, whioh was got for him ; and that he stayed with him, Cole, from that time until his death, and had never been further from the house than the barn. That before he had been there a year, he, Cole,, made a contract with him to keep'him during his life; that when Cook came to his house, he came direct from Lawyer Gifford. ■He said he knew nothing of Cook’s papers, property, or effects ; he believed if Lawyer Kirkpartick had lived he could have told something about it, as he understood he had done his business ; that he, Cole, had overhauled all Cook’s papers, and had found nothing but some old receipts. That it being thereupon stated to Cole that it was understood that Cook, shortly before August, 1841, held the notes of W. Kirkpatrick, which he was in the habit of carrying about in his hat, Cole answered that he knew nothing about said Kirkpatrick’s owing Cook any money; that he had never seen any papers of Cook of any value or account whatever. That the inquiry was then put to Cole whether he knew of Cook’s having any property or effects in New York, and, in answer, he stated that he never could find that he had anything there; that he had heard he owned some houses in the city of New York, and that he, Cole, had been to New York and examined the records for fifty years back, and could not find that he owned any real estate there. And it being then further stated to Cole that it seemed strange, seeing that Cook had been reported to be a man of property and worth from $30,000 to $50-000, that he should have left no estate or property. Cole, thereupon said that if Cook had not have had a stroke of the palsy before he came to his house, he believed he would have been able to have informed him, Cole, about his affairs, and where his money and papers were; that Cook had one stroke of the palsy before he came to his house, and one afterwards, which wholly deprived him of his speech. Aud the complainant Davenport having said to Cole that if Cook had no property he would get nothing for the trouble he had had with him, which must have been considerable, Cole answered that he had received enough to compensate him for his trouble, without specifying from what source or in what manner.
    That the complainants are informed, believe, and charge that Cole now holds the said mortgage so as aforesaid given to him for the debt due Cook in New York, and also the bond or oiher security received by him from Cobb, as aforesaid, and also the bond and mortgage received by him, by assignment from Hugh Kirkpatrick, administrator of W. Kirkpatrick ; and that lie has collected and received the interest on the same since they came to his hands.
    That said Cobb and Hugh Kirkpatrick, when they made said settlements or arrangements with Cole for the debts due from them respectively, to Cook, well knew, or had good reason to believe, that Cook was of unsound mind, and incapable of transacting business.
    That the complainants have obtained from the surrogate of New York administration on the estate of Cook, and have filed a bill in the Court of Chancery of New York, and obtained an injunction restraining Cole from collecting or receiving the said debt due from Williams & Co., and restraining them from paying it to -Cole.
    That, as administrators of Cook, they have applied to Cole for jl statement and account of the estate of Cook that has come to .his knowledge, hands, or possession.
    The bill prays that Cole may set forth what money, securities for money, or effects of Cook were delivered to him by Cook in his lifetime, or have, in any way, before or since Cook’s death, come to his possession, &o. And that Cole may be decreed to assign to the complainants the several securities received by him for moneys clue Cook in this state, as aforesaid, and to deliver to the complainants all notes, bonds, goods, and effects of Cook in his possession or under his control. And that Cole may bo snjoined from collecting or receiving the moneys due on or secured by the note or bond given by Cobb, as aforesaid, or the bond and mortgage given by said Doty, as aforesaid, or any other moneys due Cook at the time of his death, and from assigning said note or bond and bond and mortgage. And that Cobb and Doty may be enjoined from paying*Cole the moneys mentioned in said note or bond and bond and mortgage, and from doing any other act to prejudice the rights and interests of the complainants in the premises.
    The injunction prayed was granted.
    Cole answered the bill. He admits the death of Cook, on the 20th May, 1845, and says he does not know, nor has he been informed, and cannot state as to his belief or otherwise, whether or not Cook, at the time of his death, was owner of and entitled to considerable personal estate in New Jersey, or of any effects other than as in the answer is after stated. That he knows nothing of Cook’s indebtedness to the estate of Robinson, but if there was any amount due from Cook to that estate, he has been informed and believes it has been more than fully paid to the next of kin of Robinson.
    He believes it to be true, and therefore admits that Cook was a man of large property, and had personal estate at the time this defendant became acquainted with him, to the amount of $10,000 and not exceeding $11,000; and, as he is informed and believe*, Cook had owned real estate to the amount of rising $5000 in New Jersey.
    He believes that the wives of the complainants are the next of kin to Cook and his heirs-at-law.
    He denies that, during the period of his acquaintance and dealing with Cook, Cook was subject to occasional despondency of temperament or derangement of intellect, or exhibited any mental aberration. On the contrary, he says that, though Cook was affected by a disease which was called St. Vitus’ dance, which somewhat impaired the use of his limbs, and rendered his appearance singular, and interrupted his speech, such disease does not, by the course of the disease, and did not in Cook, induce any aberration of mind ; and that, during all the time for that purpose mentioned in the bill, the mind of Cook was sound, and capable of apprehending whatever was presented to it in a rational manner; that he was in the constant habit of inquiring into hi3 affairs during the whole of that period; and though his complaint greatly impaired the use of his limbs in walking, and in a considerable degree his speech, he continued able to write, and thereby to explain what he could not do orally; to make calculations and to give directions in receiving and making conveyances of property, and in his usual pecuniary affairs, and was fully competent to manage and control his own pecuniary interests and property.
    He believes it to be true that Cook was very penurious and miserly in his habits, but whether he ever denied himself the ordinary comforts of life, in clothing rir provision, from any such cause, he is not informed, nor does he know.
    He believes it to be true that, some time previous to August 1st, 1841, Cook was in the habit of traveling about the country, but only in pursuit of his own business, and stopping at houses, soliciting the inhabitants to take him in, and sometimes sleeping in barns; but whether the occupants of such houses were strangers to Cook he is not informed, but leaves it for such proof, &c.
    He says that on or about August 20th, 1841, Cook came to his house; he then resided in Saddle River township, Bergen county; that he had no previous acquaintance with Cook, having never before heard of him ; and that Cook continued to live with him until his death; that while Cook lived with this defendant he was permitted to go and come as he pleased, though he never went beyond the barn, or off the premises. He denies that Cook was in any manner restricted in going or coming from or to his room, or any part of the neighborhood.
    He-denies that very little was known of the situation of Cook, but says that the residence of Cock with him was, during the whole period, open, public and notorious, and in no wise concealed, nor sought to be concealed, from the complainants or their wives, or the acquaintances of Cook, or any other person.
    He admits that when Cook came to his house there were the following sums of money due him from persons in New York and New Jersey, viz.: a note of R. S. Williams & Co., of New York, for $8545, dated June 1st, 1841, payable on demand; two notes of Walter Kirkpatrick, one dated June 16th, 1834, payable on or before June 26th, 1840, for $1805, with interest from June 26th, then past, the interest thereon being endorsed as paid to July 3d, 1838; the other dated June 21st, 1838, for $108.30, payable one year after date, with interest, on which one year’s interest was endorsed paid. But he denies that there was ever known or discovered by him in the possession of Cook any note, bond or other evidence of indebtedness by Andrew B. Cobb, or of any other person jointly with him, to Cook, or for his use, nor were there any securities or evidence of indebtedness of said Cook, other than those before mentioned.
    He admits that, at the time last mentioned, Cook had in his possession $148 in bank bills, and not above that amount in bills and specie.
    He denies that he ever took possession of Cook, as alleged in the bill, but admits he entertained him as landlord, and, after the making of the agreement after stated, took care of and provided for him in all things necessary or proper for his comfort, until his death.
    . He admits that when Cook came to his house, he was in a ragged, dirty and apparently, destitute situation ; that he applied to this defendant for food, which this defendant offered him from the table which supplied his family ; that Cook refused to partake of what was thus offered, and desired to have such food as he particularized, which was then procured for him ; that Cook proposed'to remain, and did remain, at his house as a lodger and boarder, defendant then keeping public house, and of his own free will, and without any influence or request by this defendant, continued to board with this defendant until the making of the agreement for his maintenance during life, hereinafter mentioned, and paid for his board agreeably to the terms stipulated between him and this defendant.
    He denies that at any period he, or any person, to his knowledge, ever imposed on Cook any species of restraint or control, or that Cook was in any manner kept or concealed.
    He says that after Cook had been some few days boarding with him, as before stated, on or about August 25th, 1841, Cook executed and delivered to him a power of attorney, under his hand and seal, in the presence of a respectable freeholder of Bergen, for the purpose of authorizing this defendant to procure sundry articles of clothing which he had left at the house of one Luke Voorhees, and for other purposes therein expressed, which power is ready to be produced and shown to the complainants.
    He admits that, during the time Cook lived with him, he, Cook, was affected with a fit of palsy, which did not happen until after he had resided with this defendant nearly two years, but he has no knowledge or belief, nor has he been informed, that Cook was ever before affected with a stroke of the palsy; and he denies that Cook was, previous to the said attack of the palsy and after he came to his house, or so far as he has ever heard or known, at any previous time, of unsound and not of disposing mind or of sufficient capacity to manage his pecuniary affairs, but says that at the time and after the said power of attorney was executed and delivered, Cook gave all necessary directions, and a memorandum and schedule of the personal property and effects he wished this defendant to procure for him, in his own handwriting and with all necessary clearness, accuracy, and intelligence, which memorandum and schedule, signed with the name of Cook, is in his possession, &c.
    That after Cook had lived at his house about four months he expressed himself much pleased with the accommodation and treatment ho had received from this defendant and his family, and, after declaring to this defendant his desire to make an arrangement which should procure for himself a comfortable support during his life, proposed to this defendant to undertake and agree, for the consideration hereinafter mentioned, to support him for the remainder of his life, at his, this defendant’s, expense. That the offer so made by Cook, being an inducement to the making such agreement, this defendant, after several days’ consideration of the subject, consented thereto, and thereupon called and counseled with George Cassedy, Esq.; and further, on or about December 18th, 1841, applied to Daniel Barkalow, Esq., counselor-at-law, at Paterson, under whose advice and direction articles of agreement were made and entered into, dated December 18th, 1841, between Cook and this defendant, which articles witnessed that Cook, for and in consideration of $1 to him paid, and of the covenants and agreements therein contained by this defendant to be kept and performed, did assign, transfer, and set over to this defendant, his executors, <fee., a certain note for $8545, made by R. S. Williams & Co., of New York, merchants, payable to said Calvin Cook on demand, and dated June 1st, 1841, and did thereby constitute and appoint this defenclant his lawful attorney, irrevocable, for him, this defendant, but in the name of him, the said Cook, to demand, receive, sue for, and recover of the said R. S. Williams & Co. the said sum of money in the said note mentioned, and all interest due thereon, and to compound for the same, and for any money received thereon in the name of him, the said Cook, to give receipts, &o., and in general to do all and every act or thing that he, Cook, might or could do if that assignment had not been made, and if personally present and acting in the premises, thereby ratifying, &c. And this defendant, in consideration of the premises, did thereby covenant, &c., with the said Cook, that he, this defendant, his executors, administrators, or assigns, should and would, for and during the natural life of the said Cook, furnish and provide him with good and sufficient board and lodging, in all respects as good as that then and theretofore furnished to Cook by this defendant, and, also, with good and sufficient wearing apparel, of a kind and quality in all respects equal to that before worn and used by him, the said Cook; and also do and procure to be done, in a good, neat, and proper manner, all the washing, ironing, and mending of said Cook; and, in case of sickness, provide competent and skillful medical attendance, and necessary and proper medicine, and also proper nursing and attention during such sickness, and furnish said Cook, for his own separate use, with a room, with good and convenient furniture, in the house of him, this defendant, wherever he might reside; and, in general, do and provide all those things which might be necessary to enable said Cook to live comfortably; all which things should be done and furnished at the cost, expense, and trouble of him, this defendant, his executors, administrators or assigns. In witness whereof, the said parties did thereunto set their hands and seals the day and year above written; which said articles of agreement were attested by John P. Outwater, and on the 11th of March, 1843, duly proved by said Outwater, before Richard R. Paulison, one of the masters in chancery, as by a certificate thereof appended to said articles may appear.
    That in pursuance of the advice of said counsel, the said articles of agreement were deposited and received in the clerk’s office of Bergen, on the 11th of March, 1843, and recorded in book, &c.
    He says that the firm of R. S. Williams & Co. consisted of Thomas Williams, Jr., Richard S. Williams and Ellis Potter; and he denies that it was a short time after (as is alleged in the bill) Cook came to live with him that he went to R. S. Williams & Co., pretending, as is alleged in the bill, to have the assignment of said note, but says that when, and not until after Cook proposed making the agreement as hereinbefore set forth, this defendant, for his own protection and security, called on said firm of R. S. Williams & Co. to ascertain if the note made by said firm to Cook was genuine and due from them, and informed them of the intention of Cook, and, after being satisfied thereof, this defendant returned home, and the agreement aforesaid was then executed by this defendant and said Cook; and, subsequent thereto, and on or about March, 1842, this defendant applied to said firm for some security for the principal and interest due on said note, when Thomas Williams, Jr., one of said firm, proposed first to call on Cook at this defendant’s house, to ascertain whether said note had actually been transferred to this defendant by any such arrangement; and, in about said March, 1842, the said Thomas called accordingly on said Cook, and having satisfied himself that Cook had freely and in a legal and competent manner entered into the said agreement and made such transfer, the said firm did agree to give such further security to this defendant; and after paying to this defendant $545, or thereabouts, with interest due thereon from the first of June preceding, the said firm did, on or about March 19th, 1842, execute and deliver to this defendant their bond of that date, under their respective hands and seals, conditioned for the payment of $8000 in one year from the 1st of April then next ensuing, with interest semi-annually, and the said Thomas, one of the said firm, gave his mortgage therefor, of that date, to this defendant, on certain leased premises in the city of New York, (describing them.) And, on the receipt of the said bond and mortgage, this defendant gave up the said note of said firm. And he denies that the said bond and mortgage were given for other moneys than were due, as aforesaid, on said note. He says he has received on the said bond and mortgage, at different times, $1000 in ,the whole.
    He says he has no knowledge or information of any note or bond given by Andrew B. Cobb to Cook or for his use, except from the bill, and denies any negotiation for changing securities with said Cobb as alleged in the bill.
    He admits he called on H. Kirkpatrick, administrator, &o., of W. Kirkpatrick, deceased, and represented himself to be the owner of the two notes given by said deceased to Cook; but he denies that there was any pretended assignment of said notes from Cook to him.
    He says that, when Cook came to live with him, he was the owner of a house occupied by him, and engaged in a very profitable business, and that his said property was justly valued at $6000. That, after the said agreement was entered into between him and Cook, he found it inconvenient, by reason of the personal care and attention to be devoted to Cook, according to said agreement, to reside at the house he occupied when Cook came to him, and he sold his said house at a less price than he would have done at any other time and under any other circumstances, and removed to another house, not far distant, in the same neighborhood, when it became necessary to build an additional room, expressly for the better accommodation and comfort of Cook and the better attendance on him by this defendant, which always, during Cook’s continuance with him, he devoted to him personally, in every service he required for his convenience and comfort. That Cook, after living with him for nearly two years, and expressing himself satisfied and pleased with the treatment he had received, stated that he confided in the arrangement before mentioned as to him, Cook, for his life; that he had no relations who exhibited any care for or had any feeling for him, but had neglected him when he most required their attention ; that he had become attached to this defendant and his family ; proposed to this defendant to take an assignment of the said notes, on or about August 19th, 1842; and thereupon caused an assignment to be made, bearing that date, assigning to this defendant the said two notes drawn by W. Kirkpatrick, with all necessary power to recover' the same j which assignment was duly attested by John E. Vanderbylandt, and was, on the 10th of March, 1843, proved by him before Cornelius Van Wageuen, a judge of the Common Pleas of Bergen, and was, on the 11th of said March, recorded in the clerk’s office of Bergen.
    He says (hat an arrangement was made between said JEL Kirkpatrick and him; that he received, in his own name and for his own use, $300, or thereabouts, and for the balance of said notes the said H. Kirkpatrick, on the 22d of May, 1843, assigned to this defendant, by an assignment of that, date, a bond, dated April 24th, 1843, made by Samuel S. Doty to said H. Kirkpatrick, administrator as aforesaid, conditioned for the payment of $2000, with interest, in two years, and a mortgage, of the same date, executed by said Doty and his wife, to secure the said bond, on a certain tract of land, (describing it,) on which said bond endorsements have been made of interest received by this defendant to April 24th, 1845.
    lie denies that when said arrangement was made with said Hugh Kirkpatrick, the said Hugh Kirkpatrick knew, or had reason to believe that Cook was unsound in mind, and incapable of transacting business ; but, on the contrary, that he, the said Hugh, was satisfied of the competency of said Cook in law to understand the nature of such a transaction, and to approve thereof.
    He denies that he ever entertained any determination fraudulently to dispossess Cook of all or any part of his property, or that, with any such purpose, he ever applied to said Williams & Co., or Samuel Doty, to change the securities given by them respectively to Cook, or to have them, or either of them, or any part thereof, assigned to him, from any other inducement, or for any other object than as in his answer is before stated.
    He admits that Sarah E. Crawford called at his house and was informed that Cook did not then go out of his room; that the time when she called was about November, 1842; but he denies that he or any of his family informed her that the family did not wish Cook to see any of his friends or acquaintances, or that he acted so bad that he could not be controlled ; or that she was permitted to see Cook but momentarily; but says that said Sarah had every facility offered her for seeing Cook, and did see him at that time as often and as freely as she pleased, and had such conversation with him as she thought proper, without any impediment, interruption or hindrance by this defendant or any other person; and that said Sarah stayed at this defendant’s house two days and two nights.
    He admits that said Sarah offered to take Cook to live with her, and that this defendant declined such offer, and then informed her of the agreement made between Cook and him.
    He says that, having stated to said Sarah that be had bound himself, as hereinbefore stated, to keep Cook during his life, she expressed herself pleased.
    He says he knows not and cannot remember that the complainant Davenport called on him immediately after the alleged taking out of letters of administration, for the purpose of inquiring into the estate of Cook and taking possession thereof, as stated in the bill, other than he is informed thereby; but he says that if Davenport did call, this defendant was not informed of the name of the person so calling and of those who accompanied him ; but he says that a person, who he afterwards understood was named Benjamin Crane, called, about the time for that purpose mentioned in the bill, with two persons, and used the expression “ we have come as administrators of Calvin Cook; ” but said Crane made no introduction of the persons, or either of them, by name, nor did he or either of the persons exhibit any documents whatever. But after Crane had left this defendant’s house, this defendant first learned the name of said Crane from this defendant’s wife, who had seen him when he had communi ■ cated to her that he, Crane, had made a settlement with Cook, about a year previous, and paid Cook a sum amounting to $700, and that during the interview with said Crane and the other persons in his company, by the hill alleged to be administrators of Cook, this defendant referred them to said Crane, not knowing that he was present, and not knowing him by name or person, for information respecting Cook’s property, as, from his own statement as aforesaid, most competent, as this defendant presumed, from long acquaintance with Cook, and having transacted business with him, to give such information.
    He says he has no recollection as to the several matters of .conversation with said persons alleged in the bill, or any questions touching or relating to the same, or statements made to this defendant as to the said Cook’s being a man of property, at the time last mentioned and referred to, and therefore cannot admit or deny the truth of such conversation.
    He denies that, shortly after the death of Cook, the said Crane called at his house in his absence, as alleged in the bill, on the 9th of June, 1845, but says he is informed and believes that a person answering the description of said Crane called on some day previous to the death of Cook, and desired to see Cook j that Cook was unwilling at any time to see visitors, unless they were invited by himself; that often, when he did request the company of persons, after their being with him a short time, he would abruptly place his hand on them and move them towards the door, desiring them to go, and exhibiting at such times, if any opposition was made, a great degree of nervous excitement, whilst he was perfectly conscious of his situation, and would be composed after the departure of such visitors.
    That the conduct of Crane was so mysterious, claiming no affinity to Cook, having no ostensible business with him, and being an utter stranger, and showing no official cause for claiming such admittance, and in the absence of her said husband, and under the peculiar disposition and habits of Cook with respect to the introduction of visitors, as before stated, the wife of this defendant. refused to admit the said visitor; and this defendant is not informed, and therefore cannot say, whether said Crane had such conversation as is mentioned in the bill with the wife of this defendant, and therefore cannot admit or deny the same.
    He says it was by the express request, and in pursuance of an arrangement with the complainant Crawford, that this defend^ ant went to the city of New York to learn, if possible, whether there was any real property in that city belonging to Cook, and the situation thereof. That Crawford had informed him that Cook was the owner of one or more houses in Cherry street, New York, and arranged to meet this defendant in New York, for the purpose of looking after said property. That, in pursuance of such arrangement, he went to New York to meet Crawford, and made a very brief examination of the records; but Crawford failed to meet him ; and this defendant found no such property in the name of Cook.
    He admits the fact stated in the bill, but not as having expressly stated it at any conversation, that he examined the records in the city of New York, some time in the spring of 1844, for real property that might be standing in Cook’s name, for the period stated in the bill, but found none standing in the name of Cook or for his use. But he is informed and believes that Cook was possessed of and entitled to in his own right, certain real estate in Morris county, New Jersey, before he came to this defendant’s house to reside. That, by a search in the clerk’s office of that county which he has caused to be made, it appears that Cook has conveyed, for the nominal sum of $1, to the said Davenport, by deed dated March 7th, 1831, a tract of land in the township of Hanover, in said county, containing 10 58-100 acres; and he also discovered on said records another deed from said Cook to said Davenport, for the nominal sum of $1, dated March —, in the same year, for certain other premises containing 26 1-2 acres; and also another deed for lands in said county, to the said Sarah Robertson, before her marriage with the complainant Crawford, for the nominal consideration of $1, for three tracts of land — one of 33 54-100 acres; one of 11 70-100 acres; and one of 7 7-100 acres, recorded May 14th, 1831.
    That it further appears by the said records, that the real estate so conveyed by Cook to Davenport, has been conveyed away by him for a sum or sums amounting to more than $2000, and that two of the lots so conveyed by Cook to the said Sarah, containing 16 acres, or thereabouts, have been since conveyed away by her for $500, or thereabouts.
    He denies that he has at any time become possessed of any money, or securities of any description, of said Cook, other than those before mentioned. He believes it to be true that the complainants have obtained administration of his estate, and filed a bill in chaucery in New York, and obtained an injunction, as stated in the bill.
    He denies that the complainants, as administrators of Cook, have .ever applied to him for any statement or account of Cook’s effects, unless the application as hereinbefore stated to have been made by said Crane was for that purpose, when, as this defendant says, there was no such request made, or requirement iu words, for any such statement.
    fíe denies that he ever entertained any fraudulent design to dispossess Cook of any of his property, or that he ever .-.ought fco acquire the property, to possess it, or any part thereof, to his own use, or in any other manner, or for any other purpose or consideration than as has been hereinbefore stated to have been done at the suggestion of said Cook himself, at times and under circumstances that would have justified his, Cook’s, attention to his own business and concerns as legally and equitably as at any other period of his life.
    Much testimony was taken on both sides.

      Asa Whitehead and Samuel Sherwood, for the complainants.
    A iuaa may have a capacity to make a will, and yet insufficient for the management of of her business. 26 Wend. 306 ; 4 Cowen 207 ; 3 Wash. C. C. Rep. 386.
    If acts and circumstances are. to be considered, rather than the opinions of witnesses. 1 Green’s Ch. 13; 8 Mass. Rep, 371; 11 Ves. 11; 5 Johns. Ch. 158.
    Inadequacy of consideration, though not conclusive, is still to be regarded. 4 Cowen 208 ; 1 Bro. Ch. 1, 150, 563.
    In equity, fraud will be presumed irotn the position and circumstances of the parties. 4 Cowen 221; 4 Dessau. 684 ; 2 Ves. 155.
    Equity will set aside a deed by reason of influence of the parry obtaining it, and confidence in the party granting it. Shelford on Lunacy 317; 1 Ves., Sr., 379; 2 Atk. 279; 2 Ves. 259.

      A. Gifford, and JB. Williamson, for the defendant.
    They cited Shelford on Lunacy 36, 37, 39, 50; Cooper’s Med. Juris. 328; 3 P. Wms. 128; 2 South. Rep. 669; 5 Johns. Ch. 144; 3 Bro. Ch. 442; 2 Phil. Mo. 293; 1 Dow’s Parl. Cases 177; 2 Atk. 340; 19 Ves. 506.
   The Chancellor.

The testimony is so voluminous that I shall not attempt to give a statement of it in detail.

The pleadings and evidence show, satisfactorily, that Cook’s mind was greatly impaired ; that Cole’s position in reference tc him was such as to subject him to an undue influence and control over him by Cole; and that the consideration to be given by Cole for the property transferred to him by the agreement, was greatly inadequate. These three considerations united are sufficient to set aside the agreement.

Decree for complainants.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    MARY FORD v. CHARLES FORD.
    Insufficient proof of desertion, on petition for divorce.
    The petition filed February 4th, 1846, states that the petitioner and the defendant were married February 27th, 1813, at Nimsfield, Gloucestershire, Great Britain ; that after their marriage they came to America, and settled at Belleville, in the county of Essex, in this state; and that from that place they removed to the city of New York, in the year .1837 ; that the defendant, her husband, lived with and supported the petitioner for about sixteen years after the marriage, until August, 1838, when he deserted her, and left New York, and returned to Belle-ville, where he has resided for the last seven years. The petitioner charges a willful, continued and obstinate desertion for more than five years ; and that, during all that time, he has wholly failed to make any provision for tier support, and prays a divorce on that ground.
    The defendant put in an answer.
    He admits the marriage; states that he arrived in this country in 1827; settled at Belleville in 1828, and sent for his wife and children, who were then in Great Britain, and that they joined him at Belleville in that year. That in 1837 the petitioner, with James Croft, who married Susannah, their eldest daughter, moved to the city of New York ; that Croft contracted to purchase, for §1200, half in cash and the balance at eight, moni hY credit, the furniture, liquors and fixtures of a public house in Pearl .street, New York, known as the “Brown Jug,” and went into possession of said house; and that the defendant, in about three weeks thereafter, removed from Belleville to New York, and took up his residence with the petitioner at the said house.
    He denies that he deserted Ms wife, as stated in the petition, and states that, some months after he moved to New York, as aforesaid, he left that, city for .Rahway, New Jersey, his object being to work at his trade, with a son of his by a former marriage, who lived there and carried on the business of a blacksmith j that he left New York because the petitioner insisted on his quitting the said house in Pearl street, and that she gave him money in order to induce him to go, for that though the said house was nominally in his occupancy, and the business thereof was ostensibly carried on in his name, yet that the avails of the business were appropriated by the petitioner, or the said Croft, or both of them ; that he remained in Rahway until March, 1838, during which time he was in the habit of visiting his family in New York, from time to time, and remaining a day or two; that during these visits he was made to sleep in the bar-room, and debarred from the enjoyment of his rights as a husband ; that in March, 1838, he returned to Belleville, where he remained until July, 1838, and that from that time until June, 1839, he resided at New Brunswick and Millstone, in New jersey; that in June, 1839, he returned to his family in New York, where lie remained until February, 1810, and during this time was treated with much indignity by his wife, and was not admitted to his marital rights; that from February, 1840, he has resided in Belleville, in this state.
    He denies that he has ever deserted his wife; says that his home is at Belleville, and is ever open to receive his wife and children ; that his wife and children have, several times, within the last five years visited him there; that he has been in the habit of visiting his wife and family in New York, repeatedly, every year since their residence there, until the 29th September last, (1845,) when the petitioner told him that if he would take care of himself, she would take care of herself; that he then offered his protection to her and the children, if she would return to Belleville ; that she refused to comply, refused to shake hands with him, and told him never to come baek again.
    He states that of the $1200, the cost of the furniture, liquors, &c., of the said public house in Pearl street, he paid $1000, and states how he did it, and what property he conveyed and mortgaged to do it, and to whom ; that his household and kitchen furniture was removed from Belleville to the said house in New York, the value of which, added to other articles either purchased or paid for by him, would amount to $500, making, altogether, $1500, which he has advanced for the support of the petitioner and family, and that not an article or dollar of it has ever been returned to him ; that it was by the avails of his capital, thus advanced, that the petitioner has been enabled to establish herself in New York in a lucrative business; that she now conducts a public house, as landlady thereof, situate in Canal street, in New York, known by the name of “ Madison Hall,” the rent of which is $400, as he has been informed and believes; and that she now conducts herself as a feme sole, her name appearing in the directories of said city as “ Mary Ford, widow, 48 Canal street; ” he states that the petitioner has made large sums of money by trading on his capital aforesaid, which legally belongs to him, and gives an instance of the purchase of a lot of land in Belleville by her, two or three years ago, the deed for which was, by her directions, made out to one Daniel Samson of the city of New York ; he says that he is anxious that his wife and family should return to his domicile in Belle-ville ; that he has always been, and is now ready to receive them, and afford them his protection and support.
    Sarah S. Smith, a married daughter of the parlies, testifies that in 1837 her brother-in-law, Croft, and her parents bought the said public house in Pearl street, New York ; that her father was then carrying on the blacksmith’s business in Belleville, New Jersey ; that it was thought best that her father should remain in Belleville and carry on his business; that she was left to keep housq for her father; that her father, herself, and furniture were afterwards removed to New York, to said house in Pearl street; it was called the Brown Jug; there her father, mother, brother-in-law, Croft, and all the family lived; mother assisted in the work for the boarders; her father and Croft attended in the business; the business was not as good as they expected, and her mother said that some of the family had better go to work, and, accordingly, Croft went to the country and got work and sent for his wife; her father then attended to the business himself; he was unsteady; mother said father had better go (o work in New York and get some money; he did not get work in New York; he went to the country; he returned in about a month ; mother asked father for money, after his return from the country; he said he had none, she had all the money; she said she had not any to pay the bills with, and they were handing in every day; her father was cross about it; said the business ought to be better, and abused her mother about is; lie stayed some days, and then went to the country again; he asked mother for money to pay his fare, and she gave it to him j this was in 1838, she thinks, while they lived at the Brown Jug; in April, 1839, their furniture, fixtures, and everything "were sold for rent; they had nothing left but what the law allowed them ; a gentleman by the name of Samson, a liquor merchant, told mother if she would get a store he would stock it with liquors, on trust; but mother was quite discouraged and said no, everything was gone; witness and mother took a small store in Duane street, and one room ; father came into the store in Duane street, on the 4th of Juiy, 1839; he passed in and out of the store, and scarcely spoke to witness or her mother; as he was passing out, mother asked him to stay; he spoke abusefnl to her, and passed on ; we did not see him again until two days after, when he came home and remained a few days, and then went into the country; he gave no money to any of the family, that witness knows of; he was obliged to sleep in the bar-room, for we had only one room besides.
    They moved from Duane street, in May, 1840, to West Broadway; by their industry and exertions they got sufficient money to take a larger place ; the one in Duane street was too small; they received no assistance from father; he ne.yer lived at home with them after the close of 1838 ; he has called, occasionally, ever since, to see his family, but never made it his home, or assisted them in any way.
    On cross-examination, she says — Mother now attends business at 415 Broadway; she has done business there since the 1st of May last, (1846;) before that time she resided and did business at 48 Canal street; it was a tavern or saloon; kept a bar and took boarders; it was called “Madison Hall,” which appeared in the directory as Mary Ford, widow, 48 Canal street.; they lived four years at 48 Canal street; mother leased it; the rent was $400 a year; the lower part of the house, mother rented out; she does not know who leases the property 415 Broadway, her sister or mother, or who pays the rent; the business at 415 Broad.way is profitable; she does not know that her father has any of the avails of it; she has not seen her father in the last six months; witness was away from her mother from May, 1841, when she was married, until April, 1843; it was an agreement between father and mother that father should go' into the country for work,; when Mr'. Samson made advances of liquor he took no security ; we had none to give; she don’t know that his bill for liquors has ever been paid; father has a son, a half-brother of witness, at Rahway, New Jersey; he is a blacksmith ; father and Mr. Croft paid for the fixtures, &c., at the Brown Jug.
    A son was sworn on the part of the petitioner, but testified nothing material. ,

    Mary Ann Ford, a daughter of the parties, aged 12 years, was sworn for the petitioner. — She says her father lives in Belle-ville ; that he has never been at home more than one or two days at a time, since she can recollect; he then behaved very cross to mother; always scolded her; mother was afraid of him; when he came there she would lock herself up in a room ; she locked herself up that he might not hurt her; when he came, he was sometimes sober, but generally intoxicated; when witness saw her father coming, she would run and tell her mother,, that she might run and lock herself up. Witness and her little sister used to run and hide under the bed, that father might not see them, for if he saw them he would make them tell where mother was j father never bought her any clothes but once or twice; on the 4th of July gave her a sixpence or ton pence.
    On cross-examination, she says she used to run and tell her mother when her father was coming, without being told by her mother to do so ; she knows her father lives in Belleville, because sise has been there ; she was there about two or throe years ago with a younger sister; they stayed at a neighbor’s ; sometimes was at father’s during the day ; mother put them in the stage, and paid their fare to Belleville ; they stayed about a week ; slept at a neighbor’s ; ate in father’s house once or twice; father put them in the stage to go to New York; mother paid the fare when we got to New York ; mother was never cross to father when he came to New "York ; she knows her father was cross to her mother, because she (witness) was there; mother was not always locked up in the room ; she knows her father wanted to hurt her mother, because he looked so cross at her; she never heard her father say he came there to hurt her mother ; no person told her what she was to swear to ; she was told some questions that would be asked her; not many; the paper she had in her hand just now was a paper which had on it what she was to prove.
    In chief, she says the paper was intended to assist her memory in case she should be frightened ; her mother told her to tell the truth when she came over here.
    Susannah Croft, a married daughter, was sworn for petitioner, but she testified nothing which falls within the range of inquiry in the case.

      P. D. Vroom, for petitioner, cited 1 Haggard’s Eccl. Rep. 733 ; 2 Adams 27.
    W. K. McDonald, contra.

   The Chancellor.

The proof falls far short of making out a case of desertion by the husband. The prayer of the petition is denied.

Whether a desertion by leaving a wife and family in another state, and coming to reside in this state, the marriage not having taken place in this state, is within our legislative provisions on the subject of divorce, need not now be considered.


text:
    JOHN SHAEFFER AND WIFE AND OTHERS v. ROBERT CHAMBERS.
    1. A mortgagee, by taking possession, assumes the duty of treating the property as a provident owner would treat it.
    2. He is bound to keep it in good ordinary repair; and, if it be a farm, he is bound to good ordinary husbandry.
    3. A mortgagee of a farm, having taken possession thereof, must show reasonable diligence to procure a tenant, or he will not be relieved from the charge of rent, on the ground that the farm was not cultivated. And if he cannot find a tenant for the buildings and the farm, he should cause the farm to be tilled.
    4. Annual rents allowed against a mortgagee in possession when the annual rents and profits, and wood and timber cut from the premises, exceeded the interest and expenses.
    On the 17th of October, 1842, a bill was filed by the surviving children and heirs-at-law of Joseph Lord, deceased, and the husbands of the daughters of said deceased, and his widow, stating that said decedent, in his lifetime, and at the time of his death, was seized of a tract of land in the township of Nottingham, formerly in Burlington county, now in Mercer, (describing it,) containing 85 20-100 acres; and being so seized, gave a bond to one Lewis Evans, dated November 13th, 1820, conditioned for the payment of $500 in two years, with interest, payable yearly • and that, to secure the payment thereof, the said decedent, with the said Martha, then his wife, gave a mortgage, of the same date, to the said Evans, on the said tract of land.

      That Evans assigned the bond and mortgage to the defendant on the 25th of May, 1821.
    That on the 22d of June, 1820, the said decedent mortgaged the said land to Joseph Douglass, to secure the payment of a bond for $625.61, with interest, given by him to said Douglass $ that on the 27th of November, 1-826, Douglass assigned the lastmemioned bond and mortgage to the defendant.
    That on the 23d of May, 1822, the said decedent gave a bond to the defendant Chambers, conditioned for the payment of $200, in one year, and to secure the same the said decedent, on the same day, executed to Chambers a mortgage of the same tract of land.
    That the said Joseph Lord died intestate in 1825, and that no administration has ever been taken of his estate; that at the death of the said Joseph Lord, all his children were infants except one, named Samuel, who has since died intestate, without issue • that the complainants Rachel, Sarah and Emeline, respectively, married while they were infants, and have remained covert ever since, and that the complainants Richard, George and Charles Lord have, respectively, attained 21 within the last ten years • that after the death of the said Joseph Lord, and while his children who are complainants were severally under 21, the defendant, as mortgagee, entered into the possession of the said mortgaged premises, and the receipt of the rents, issues and profits thereof, and still continues in such possession and receipt, and while thus in possession has cut down the trees and timber, of which there was a large quantity standing thereon, and has cut down 2000 cords or other large quantity of wood from said premises, and made market thereof, and applied the same to his own use.
    That on the death of the said Joseph Lord, the complainant Martha, his widow, became entitled to dower in said mortgaged premises, subject to keep down one-third of the interest of the mortgage so executed by said Joseph Lord and her to said Evans, which she professes herself ready to pay.
    That on the 16th of January, 1827, the said Chambers exhibited his hill for the foreclosure of the equity of redemption, or the sale of the mortgaged premises, to satisfy the said several mortgages, to which the said Martha filed her answer, insisting on her claim to dower in said mortgaged premises; and such proceedings were thereupon had that on the 23d of July, 1831, the said bill was dismissed for want of prosecution, with costs.
    The bill charges that payments were made by Joseph Lord, in his lifetime, on account of the mortgages, and that what remained due at his death has been paid by the wood and timber cut by Chambers from the premises, and the rents and profits received by him, or which he might have received, while in possession, without his willful default.
    The bill prays that an account may be taken of what is due on the mortgages, and of the amount and value and avails of the wood and timber cut by the defendant during his possession, and of the rents and profits received by him, or which, without his willful neglect or default, he might have received since he took possession ; and that, in taking such account, rests may be made from time to time, when and as the value and proceeds of the wood and timber and rents shall appear to have exceeded the interest in arrear; and that if any balance shall be found due to the defendant, then, that upon payment of such balance, the defendant may be decreed to deliver up possession : and that if the defendant has received more than is due him, he may be decreed to pay the surplus to the complainants ; and that one-third part of such overplus may be decreed to the said Martha, or whatever may be found due to her on taking an account of the sum due on the said mortgage to Evans • and that one-third part of said premises may be assigned to her for her dower.
    In July, 1843, the defendant put in his answer. He admits that, on or about the 1st of April, 1826, there being a large arrear of interest unpaid, he, by the consent and request of the said Martha Lord, and of her friend and adviser, Benjamin Lord, entered into possession and received some of the rents; but he denies that he has received sufficient rent to pay the interest on the several mortgages and to pay the taxes and necessary repairs ; and he denies that he has cut 2000 cords of wood, though he admits that he has cut trees on the premises for rails and .posts and necessary repairs.
    He denies that the mortgages have been paid, aud insists there is a large arrear of principal and interest due thereon.
    He says he was very unwilling and reluctant to take possession, and that he offered to said Martha to deduct $300, if she would pay the balance of the bonds and mortgages; and that he preferred settling in this way to taking possession. But that she gaid she was unable to pay, and preferred he should take the premises for his pay.
    He says that when he took possession of the premises they were not worth the' amount due on the mortgages by $500, and that since he took possession several of the tenants have failed and wholly neglected to pay their rents, notwithstanding ho used ail diligence to recover the same.
    Ho says that one of the tenants to whom he had rented the premises, viz., Ephraim B. McIntyre, when he was ready and able to pay the rent to him, was forbidden by Mrs. Shaeffer, one of the complainants, to pay the same, she claiming to be entitled thereto, or to some part thereof; and that in consequence of such notice, the said tenant refused to pay the rent to this defendant, and that said tenant has since failed and become wholly unable to pay the same.
    He says he has been unable, this year, to rent the premises.
    He denies that the complainants, or either of them, ever applied to him to account for the rents and profits, or for the wood and timber cut by him, and insists that the said Martha Lord oaving voluntarily relinquished her right to redeem, and induced him to take possession, she should not now be permitted to redeem.
    Evidence was taken in the cause.
    On the 1st of October, 1845, a decretal order was made, referring it to a master to take an account of what is due Chambers for principal and interest on the several mortgages, and an account of the wood and timber out by Chambers from the mortgaged premises, and the time when, and the value thereof; and an account of the rents and profits which have come to the hands of Chambers, or which he without his willful default might have received; and an account of all moneys expended by Chambers in necessary repairs and for taxes, and that what shall be found to have been so expended be deducted from what shall be coming on the account of the wood and timber, and rents and profits. And if the master shall find that the rents and the value of the wood and timber cut, exceed the amount so paid for repairs and taxes, and the interest on the mortgages, the master is to make annual rests; and that what shall be coming on account of wood and timber and rents and profits be applied, first, in payment of the interest on the mortgages, and then in sinking the principal j and that what shall be coming on account of wood and timber cut and rents and profits be deducted out of what shall be found due Chambers for principal and interest, reserving the question of the propriety of annual rests'.
    The master’s report came in on the 16th of May, 1846.
    The master reports that there was due on the Douglass bond and mortgage, on the 1st of April, 1826, for principal and interest............................................................ $823 49
    On the mortgage to, Evans, on the 1st April, 1826,
    for principal and interest.................................... 689 55
    On the Chambers mortgage, on the 1st of April,
    1826, for principal and interest............................ 253 96
    $1767 00
    That the amount of principal due on that day, on the said three mortgages, was.........1 $1325 61
    and the amount of interest-...................... 441 39
    $1767 00
    That the defendant went into possession of the premises on the said 1st of April, 1826.
    That there was upon the premises about 25 acres of wood, averaging 12 cords to the acre.
    That 264 cords were cut and sold by the defendant, worth $2.50 a cord, exclusive of the expense of cutting and carting to market.
    That 60 cords thereof were cut and sold by the defendant in the winter and spring of 1832 and 3, of the value of $150.00 and that he has charged the defendant this amount on the 1st of April, 1833.
    That 100 cords were cut and sold by the defendant in the winter and spring of 1833 and 4, of the value of $250 00 and that he has charged the defendant with that amount on the 1st of April, 1834.
    That 100 cords were cut and sold by the defendant in the winter and spring of 1834 and 5, of the value of 250 00 and that he has charged the defendant with that amount on the 1st of April, 1835.

      m is That, in 1837, the defendant cut and sold wood and faggots of the value of....................................... which he has charged to the defendant on the 1st of April, 1837.
    7 That, in 1838, the defendant cut and sold faggots to the value of................................................... which he charged to the defendant on the 1st of April, 1838.
    That, in 1826, the defendant leased the premises to Henry and William Heed for one year, for $100. That the lessees failed, and only §50 was recovered on the 1st of October, 1826, and he charges defendant, October 1st, 1826........................ ......................... 50 00
    The master then reports that it does not satisfactorily appear to him what the defendant received from the premises in the years commencing April 1st, 1827,1828,1829, and 1830, or, if they did not produce the same annual rent, that said loss was not occasioned by the default of the defendant, and that he has therefore charged the defendant with $100 on the 1st of April,
    1828.......... ........................... ......... ............... $100 00
    April 1st, 1829................................. .............. 100 00
    April 1st, 1830................................................ 100 00
    April 1st, 1831............................................... 100 00
    That, for the year ending April 1st, 1832, the premises were rented to Robert C. Mount, on shares, and that the defendant received therefor $80, and he charges defendant, April 1st, 1832................................. 80 00
    The master then states that he charges the defendant with the same amount on the 1st of April, 1833, though the premises were not rented, it not appearing satisfactorily to him that they might not with due diligenee have been rented for that amount.................. $80 00
    That, for the years ending April 1st, 1834, and April 1st, 1835, James Hunt rented, and paid defendant for the premises, $75 a year; and he therefore charges the defendant, April 1st, 1834.......... ........................ 75 00
    and April 1st, 1835.......................................... 75 00
    That, for the eight years commencing April 1st, 1835, and ending April 1st, 1843, the premises were rented to the McIntyres, or one of them, part of the time on shares, and part of the time at $100 a year. That it does not satisfactorily appear what the yearly share of the defendant amounted to, when the place was let on shares, and that he has charged him with $100 in each of those years except the last, in which, he is satisfied, the rent was lost without any default of the defendant.
    He therefore charges defendant, April 1st, 1836........ 100 00
    April 1st, 1837................................................ 100 00
    April 1st, 1838.:............................................. 100 00
    April 1st, 1839................................................ 100 00
    April 1st, 1840................................................ 100 00
    April 1st, 1841............:................................... 100 00
    April 1st, 1842........................ ........................ 100 00
    That, for the year ending April 1st, 1844, the premises were not rented, but that it does not satisfactorily appear to him that they might not have been rented, if reasonable diligence had been used; that, since then, the premises have been rented to Pearson Reed, and have produced, as it appears in evidence, $60 a year; and that he has therefore charged the defendant at that rate, from the 1st of April, 1843, to the date of the report — that is to say—
    April 1st, 1844........................................... 60 00
    April 1st, 1845..... 60 00
    April'1st, 1846.............................. 60 00
    The report is dated May 15th, 1846.
    That he has taken an account of thé moneys expended by the •defendant in repairs and taxes, and has allowed him, April 1st, 1831............................................................. $17 63

      April 1st, 1834, for posts and rails........................ $31 10
    April 1st, 1835, for ditching......... ......... .............. 36 00
    April 1st, 1836, for lime.................. ......... ......... 45 00
    April 1st, 1837, lime......................................... 5 00
    April 1st, 1839, fencing, repairs, lime, &c............... 67 26
    April 1st, 1842, for repairs.......... ........................ 15 98
    Thai during a portion of the time, the wood and timber and rents and profits exceeded the interest and expenses of necessary ¡repairs; and that he has accordingly made rests and applied the income of the property first, to the reduction of the expense accounts and interest, and then to the redaction of the principal of the mortgages.
    And that at the date of his report, the whole amount remaining due the defendant on ids said mortgages, after paying expenses and making all just allowances, is $1401.66.
    Exceptions to this report were filed on the part of the defendant as follows:
    1st. That defendant ought not to have been charged with rent for the year ending April 1st, 1828, either according to the terms of the decretal order, or in equity, or if chargeable at all for the said year, he is charged too high, and more than he received.
    2d. That the master has charged him, on the 1st of April, 1830, one year’s rent not accounted for, $100, whereas he ought not to be charged for that year, or if to be charged, he is charged too high; and that the master has omitted to deduct $5, which, by the terms of the lease under which the said farm was rented, the exceptant was bound to furnish and did furnish, to, be ased on the premises, and also omitted to deduct any sum for the value of stacks left by the exceptant on the premises to induce the tenant to rent the premises.
    3d. That the master has charged the exceptant, April 1st, 1834, (it means, probably, 1833,) one year’s rent not accounted for, when he ought not, or if anything is charged, it, is too high, and more than he received.
    4th. That $60 is charged for the year ending April 1st, 1843, (it means 1844,) which ought not to have been charged, because the premises were not rented that year and could not be.
    5th. For that the master has charged him with $50, October 1st, 1826, as received of Reed, being more than he received ; and that the master omitted; to deduct that part of the rent which, was to have been paid in work, which was not performed by the tenant, and because the master omitted to make a rebate of interest on account of the payment of the rent before it was due.
    6th. For that the master has only credited him, April 1st, 1836, for 450 bushels of lime, at ten cents, $45, when he should have credited twelve cents.
    7th. That the master has charged him one year’s rent, ending April 1st, 1844, $60, when he should not have been charged with any rent for that year, because the premises were not rented that year, and because he received no rent that year for said premises.
    8th. Because the master has charged him for 1 year, 1 month and. 15 days’ rent, as received from P. Reed, tenant, $67.50, when he ought not to have been charged with that sum, because said sum was not received, and because that portion of the rent supposed to have accrued between the 1st of April and the 15th of May, did not become due until the end of the year.
    9th. For that the master has made annual rests in stating the account against the exceptant.

      W. Halsted, for the exceptant.
    As to the 1st, 2d, 3d, 4th and 6th exceptions, a mortgagee not in the actual possession of the mortgaged premises, is bound to account only for the profits actually received by him. 1 Vern. 45; Powell on Mortgages 272; 4 Kent’s Com. 159,160, 166; 12 Ves. 493.
    As to the 9th exception, a court of equity will not require annual rests to be made if the interest on the mortgage is in arrear when the mortgagee takes possession, even though the rents and profits may exceed the annual interest, nor until the principal of the mortgage debt be entirely paid off. 2 Story’s Eq. Jur., § 1016, a, note; 4 Kent’s Com. 166, 7.

      G. D. Wall, contra.

   The Chancellor.

On reading the testimony, I do not see any good reason why the report of the master should not be confirmed.

A mortgagee, by taking possession, assumes the duty of treating the property as a provident owner would treat it, and of using the same diligence to make it productive that a provident owner would use.

If it be a farm, he is not at liberty to let it lie untilled because the house on it, or the house and farm together were not rented. I see no reason why the farm should not be husbanded, though the buildings on it were not rented.

Again, a mortgagee in possession is not at liberty to permit she property to go to waste, but is bound to keep it in good ordinary repair, and if it be a farm, he is bound to good ordinary husbandry.

It appears by '¡he testimony that, for several years of the time during which the defendant has been in possession, the property was not rented, and the whole of it, farm and all, was permitted to lie uncultivated. The master reports that it was not made satisfactorily to appear to him that the property was thus unoccupied without the default of the defendant, The ground here taken by the master raises this question ; a farm of 85 acres, "¿5 of it in woodland, under mortgage, is taken possession of by dhe mortgagee, and rented. He remains thus in possession a number of years. Occasionally, daring this period, the premises are. vacant and the farm untilled. Is it sufficient for the mortgagee, thus in possession, in order to relieve himself from any charge for rents and profits for the years during which the premises were thus vacant, simply to say that he could not rent them, or should he be held to show proper diligence to procure a tenant ? Is the mortgagor to prove that he might have rented it but for his willful default, as that he turned out a sufficient tenant, or refused to receive a sufficient tenant, as would seem to be held in 1 Vern. 45; or does the fact of the premises being left vacant throw upon the mortgagee the burden of proving reasonable diligence to procure a tenant, as seems to be held iu Metcalfe v. Campion, 1 Moll. 238 ?

It seems to me that it will not do for the morlgagee, having thus taken possession, to fold his arms and use no means to procure a tenant j and I am disposed to think he ought to be held to show reasonable diligence to procure a tenant. But, at all events, if the farm and buildings are not rented, he ought to cause the farm to be tilled, and that in a husbandlike manner.

From the testimony, I think the defendant has been, negligent, to say the least, in the manner in which he has treated the premises.. No provident owner would have treated them as he has. They have been permitted to go greatly out of repair, and the lands have been so badly husbanded that, for several of the last years, the whole premises, rented at first by the mortgagee for $100, have rented for only $60, and he has been charged but that sum.

The defendant, during several years, cut wood and timber from the premises, and sold it. The master, in stating the account, made annual rests when he found that the wood and timber, and the rents and profits exceeded the interest and expenses, and applied the income, first, to the interest and expense account, and then to the reduction of the principal. This was objected to on the part of the defendant. It seems to me the master was right.

I am satisfied with the" general result reached by the master.

Exceptions disallowed.