author: The Chancellor..

text:
    John De Groot v. E. R. V. Wright and wife.
    The bill, filed in 1848, stated that, in 1817, the complainant’s mother, a widow, agreed with complainant that he might take possession of a tract of land, and make improvements on it; and that, in consideration of his so doing, he might take the rents, issues and profits thereof during Ms natural life. That the complainant, accordingly, took possession of and has since continued to cultivate the said tract, and to take the rents, issues and profits thereof, and has built a dwelling house &c. thereon. That his mother, in 1846, conveyed the said tract to a daughter of the complainant, in fee, for the consideraticn of natural love and affection. That the said deed was accepted by the daughter with full knowledge of the interest of the complainant; and that it was understood and agreed that it was not to take effect during the life of complainant. The bill prayed that the deed might be corrected ; and that the daughter might be restrained by injunction from prosecuting an ejectment. The injunction was allowed. The mother was not made a party.
    The answer denied all knowledge or information of any agreement that the complainant was'to enjoy the land during his life, or for any other term; and stated that the defendant is informed and believes that no such agreement was ever made between the complainant’s mother and him; and averred that the deed to the defendant was drawn according to the wishes and desire of complainant’s mother.

      Meld, that the mother should have been made a party defendant. And that, she not being made a party defendant, the answer was sufficient to dissolve the injunction.
    The bill, filed in 1848, states, that Joanna DeGroot, about 1817, was seized and possessed of a certain tract of land containing about 810 acres, (describing it,) bounded &c., and on the south by lands now in the occupancy of the said Joanna; and that the said Joanna, who is the mother of the complainant, and with whom the complainant was living at the time of making the agreement mentioned in the bill, and hath continued to do so from thence hitherto, about the year 1817, as well in consideration of the natural love and affection which she bore the complainant as for the benefits she would derive from the improvements the complainant proposed to put on said lands, agreed with the complainant that he might enter upon and take possession of the said tract of land and make improvements thereon, and that, in consideration .of so doing, the complainant might possess and enjoy the said tract of land and have the rents, issues and profits thereof to his own use and benefit, for and during his natural life.

      That before the time of making said agreement, and before the complainant took possession thereof as after mentioned, the said tract was in a low state of cultivation and unproductive; the fences out of repair and going to waste; no dwelling house or barn or other buildings on the same ; and that, about the year aforesaid, the complainant entered upon and took possession of the said tract, and commenced to cultivate, and hath since, hitherto, continued to cultivate the same ; that he hath built a good substantial farm house, barn and other outbuildings thereon ; repaired old and erected new fences wherever the same were wanting; planted fruit trees and made other improvements; wjiicli have greatly advanced the value of the said property. That those improvements have been made at the sole expense of the complainant, and have cost him at least $3000.
    That the complainant has always, since he first entered into possession of the promises, hitherto, by himself and his tenants been in the actual occupancy and possession of the same, and taken to his own use the rents, issues and profits thereof.
    That one John Scott, senior, is now, as the tenant of the complainant, in the possession and occupancy of the dwelling house, barn, garden and curtilage belonging to said tract, and the complainant is in possession and occupancy of the residue thereof.
    That the said Joanna, on or about Sept. 5, 184C, conveyed, as the complainant has been informed and believes, by deed, the said premises to Naomi C. E. Wright, the wife of Edwin R. V. Wright, her heirs and assigns; the said Naomi being the daughter of the complainant and the granddaughter of the said Joanna; and that the said conveyance was made upon the consideration of natural love and affection. But the complainant charges, that the said deed was made and accepted with full knowledge by said Naomi and the said E. R. V. Wright of the rights and interests of the complainant in the premises ; and that it was understood and agreed between the said Joanna and the said Naomi, and as he believes, with the said E. R. V. W., that the same was not to take effect during the lifetime of the complainant, so as to affect or interfere with his rights and interests in said premises during said period ; and that the complainant was to have the use and possession of the premises during his life.

      That the said Joanna is aged 84, or thereabouts, and confided in said E. R. V. W., who is a lawyer by profession, to draw the said deed ; and if the said deed does not, as the complainant believes it does not, reserve the use of the said lands to the complainant during his life, i't was drawn in violation of the express understanding and agreement made by the said Naomi and, as the complainant believes, by the said E- R. V. W. also, with the said Joanna, that the complainant should possess and enjoy the same to his death; and is a fraud upon the said Joanna and the complainant.
    That the said E. R. V. W. and the said Naomi have lately threatened to turn the complainant and his said tenant out of possession ; and that, before.the 1st of May last, the saidE. R. Y. W. caused to be served upon the complainant a notice in writing requiring the complainant to deliver up to him on the 1st of May the possession of said premises, or that he would hold the complainant liable as a trespasser.
    That the said E. R. V. W. and his said wife have lately brought two ejectments; one against the complainant, and the other against the complainant’s said tenant, John Scott, senior.
    The bill prays that the said deed may be corrected, in conformity with the alleged agreement, so as to reserve to the complainant a life estate in the premises ; and that the said E. R.
    , V. W. and wife may be perpetually injoined from prosecuting the said ejectments, and from commencing any other action, during the life of the complainant to turn him or his tenants out of the possession of the premises, or in any way to disturb his enjoyment thereof ; and for further and other relief.
    Wright and his wife are the only defendants.
    A preliminary injunction was allowed,
    The defendants answered the bill.
    They admit the seizin of the said Joanna as stated in the bill; and that she and the complainant have lived together in the-same house and on the same farm, as stated in the bill.
    They deny that they had any knowledge or information, except by tbe bill, that any such agreement was entered into between the said Joanna and the complainant as in the bill stated, or any agreement whatever by which the complainant was entitled to enjoy said tract of land for his natural life or for any other time, except as the tenant at will; hut that they are informed and believe, and therefore aver, that no such agreement was ever made or entered into between the said Joanna and the complainant.
    They say they are ignorant of what was the state of cultivation of the said tract at and before 1811, or tbe condition of the fences thereon; hut that they have been informed and believe that there was then no house or barn upon tbe same, and that a house, barn and other improvements have been put upon the same under the superintendence of the complainant; hut that they do not admit or believe that they cost $8,000, or were made at the proper cost of the complainant; but they aver that at and after 1811 the said Joanna was a widow possessed of considerable property, consisting of her homestead farm, of which the tract described in tlie bill formed a part, and of money at interest, and of a house and lot in tbe city of New York, rented out. That the complainant, being her only child, and having at that time her entire confidence, was entrusted by her with the management of all her property, collected and received her interest and rents and the produce of her land, and therewith improved the property at his discretion, as these defendants are informed and believe, in the expectation that at tbe death of his said mother he would succeed to her whole estate, real and personal, and without any agreement or understanding whatever for a life estate or any other estate in said lands made or entered into with the said Joanna. And they aver and. insist, that the complainant received of tho moneys of the said Joanna, in manner aforesaid, not paid over by him to her or otherwise appropriated to her use, more than all the moneys expended by him in the improvement of the said tract of land.
    They admit that the complainant has been, since about 1811, in possession of said tract, by bimsolf or his tenants ; but only, as they insist and aver, by permission of and as tenants at will under the said Joanna, who permitted him to take the rents, issues and profits thereof, or the greater part of the same, to his own use; she herself residing upon and being in possession of the same jointly with him.
    They admit that John Scott, senior, is in possession of part of said land in the bill, described, as tenant of the complainant, and of the dwelling house, barn and garden thereon.
    They say that on the 24th of March, 1844, and for several years before that time, the said Joanna was and had been dissatisfied with the complainant on account of his conduct towards her and his mismanagement of her property, and had withdrawn her confidence from him, and had determined to convey her property, or the greater part thereof, beyond Ms control, unto her grandchildren, the children of the complainant, upon condition and in consideration of her said grandchildren securing to her a full, ample and respectable support and maintenance during her natural life. And that, in pursnance of said determination, she did, on the 24th of March, 1844, by deed of that date, with full covenants of warranty and againát incumbrances, convey to the defendant Naomi a house and lot in Lispenard street, New York, known as No. 234 on the Lispenard map. And that, at the time of the execution and delivery of the said conveyance, and as the consideration thereof, the defendant E. R. V. Wright, jointly with Samuel E. DeGroot, a grandson of the said Joanna, to whom, in pursuance of her said determination, she had also conveyed a part of said real estate, executed and delivered to the said Joanna a deed of covenant, bearing even date with the said conveyance, in the words and of the tenor following : “ In consideration of the homestead farm being conveyed to me, Samuel E.'DeGroot, by my grandmother, Joanna DeGroot, being the place on which she now lives, by deed bearing even date herewith, and in consideration of the house and lot belonging to the said Joanna DeGroot being conveyed to her granddaughter Naomi, my wife, now therefore we the said Samuel E. DeGroot and Edwin R. Y. Wright do covenant tó and with the said Joanna DeGroot, for ourselves and our heirs, jointly and severally, that we will, during her natural life, 'furnish and provide or pay to the said Joanna DeGroot a full support and maintenance, or such sum of money annually as she shall consider equivalent for the purpose of supporting and maintaining hor, in as full, ample and respectable a manner as she has always lived.” In witness &c.; dated March 26, 1844. And that the said house and lot in New York, so conveyed to said Naomi by the said Joanna, as part of her share in the distribution of her estate and for the consideration of the covenant aforesaid, was afterwards discovered by the said Joanna to have been incumbered by means of the complainant and the confidence reposed in him by her, to a large amount; which was not known to the said Joanna at the time of such conveyance. She did, therefore, for the purpose of carrying out her original intention, and of making good to the said Naomi the loss occasioned by said unexpected incumbrance, and of satisfying the breach of the covenant in said deed, by deed dated Sept. 5,1846, convey to the said Naomi, in fee simple, the lands in the said bill of complaint described. But the defendants, each for himself and herself, deny that they had any knowledge, intimation or belief, at the time of the making and delivering said deed, that the complainant had any right or interest in said lands, either at law or in equity, for his natural life or for any other term whatever; or that it was understood and agreed between the said Joanna and the said Naomi that said deed was not to take effect during the lifetime of the complainant; or that it was any part of the agreement or understanding on which said deed was delivered that the complainant should have the use and possession of the premises during his life.
    They admit that said Joanna is of about the age mentioned in the bill; and that the defendant E. R. V. W. is a lawyer, and was intrusted by her to draw said deed, and did draw the same, and that the same is an absolute conveyance in fee simple; but they deny that the same was drawn in any way or respect different from or in violation of any understanding or agreement between the said Joanna and these defendants, or either of them, or different from her understanding, wishes or instructions •, or that the same was in anywise a fraud. And they aver it was drawn according to her desire and instructions.
    They insist that, if any such agreement was made between the said Joanna and the complainant as is stated in the bill, which they do not admit or believe, it was not in writing or signed by tbe said Joanna, and that therefore, by tbe act for tbe prevention of frauds and perjuries, any' estate which the complainant could or would acquire in said premises under such agreement, if made, would have been an estate at the will, of said Joanna and her assigns only, which estate at will, if any existed, was terminated by these defendants by their notic'e to quit, in the bill stated to have been served. And they pray that they may have the same benefit of the said statute and the facts above set forth relative thereto as if the same had been pleaded.
    On this answer, a motion was made to dissolve the injunction.

      Ji. O. Zabriskie for the motion.

      W. Pennington contra.
   The Chancellor..

The complainant is the only child of Joanna DeGroot. The defendant, Naomi Wright, is a child of the complainant. The complainant and his mother, after the death of his father, continued to live together on the homestead farm of his deceased father.

The case made by the bill is, shortly, that, in 1817, the said Joanna, the complainant’s mother, agreed with the complainant that he might enter upon and take possession of a certain tract of land of about eighty acres, and make improvements; and that in consideration of so doing, he might possess and enjoy the same and take the rents, issues, and profits thereof during his natural life. That, about the year aforesaid, the complainant took possession of the said tract and commenced to cultivate the same, and hath since hitherto continued to cultivate the same. That he has built a dwelling house, barn and other outbuildings thereon, and made other improvements; and has always, since he so took possession, been in the occupancy and possession thereof and taken to his own use the rents,' issues and profits thereof. That the said Joanna, in September 1846, conveyed the said tract to the defendant Naomi, wife of the defendant E. R. V. W., her heirs and assigns, for the consideration of natural love pnd affection. ■

That the said deed was made and accepted with full knowledge by the defendants of the rights and interests of the complainant in the premises, and that it was understood and agreed, that the same was not to take effect during the life of the complainant, so as to affect his rights and interests during said period, and that the complainant was to have the use and possession of said tract during his life. That the said deed was drawn by E. R. Y. W., and that, if the said deed does not, as complainant helieves it does not, reserve the use of the said tract to the complainant during his life, it was drawn in violation of the express understanding and agreement made by the said Naomi with the said Joanna, that the complainant should possess and enjoy the same to his death, and is a fraud on the said Joanna and this complainant. The bill prays that the said deed from the said Joanna to the said Naomi may he corrected, in conformity with the said alleged agreement, so as to reserve to the complainant a life estate in the premises; and that the defendants may be injoined from prosecuting an ejectment brought by them, or any other action to turn the complainant out of possession, during his life. The said Naomi and her said husband, E. R. V. W., are the only defendants. Joanna DeGroot is not made a defendant.

The answer denies that the defendants had any knowledge or information that any such agreement was entered into between the said Joanna and the complainant, or any agreement whatever by which the complainant was entitled to enjoy the said tract of land for his natural life, or any other time, except as tenant at will; and says that the defendants are informed and believe that no such agreement was ever made or entered into between the said Joanna and the complainant.

The defendants severally deny, that at the time of the making and delivery of the said deed from tho said Joanna to the said Naomi they had any knowledge, information or belief that the complainant had any right or interest in the said tract of land for his life, or for any other term; or that it was understood or agreed between the said Joanna and the said Naomi that said deed was not to take effect during the life of the complainant; or that it was any part of the agreement or understanding on which said deed was delivered that the complainant should have the use and possession of the said tract during his life. They deny that the said deed was drawn in any way or respect different from or in violation of any understanding or agreement between the said Joanna and the said Naomi, or different from their understanding, wishes and instructions ; and they aver it was drawn according to their desire and instructions.

As to the alleged agreement or understanding between Joanna and Naomi that the deed from Joanna to Naomi was not to take effect during the life of the complainant, such agreement or understanding, if made or had, would, of course, be known to Naomi. She denies that any such agreement or understanding was made or existed. The answer upon this point of the case is a sufficient denial of the bill. It must be taken, then, for the purposes of this motion, that the áeed from Joanna to Naomi was made as it was intended to be made. Joanna intended to convey, and did convey, by the deed to Naomi, the fee, making and intending-to make no reservation of or provision for any interest in the premises to or in favor of the complainant. She may have relied that Naomi, being the daughter of the complainant, and her husband would not turn the complainant out of possession, but would permit him to occupy the premises duing his life; and something may have passed between her and Naomi, before or after the delivery of the deed to Naomi, which gave her confidence in this respect; but she made an absolute deed, and imposed no obligation on Naomi. And her making an absolute deed must be considered as an assertion on her part that she had the right to do so, and a denial of any interest in the premises in the complainant, or any other person, interfering with her right to do so.

The question, then, as to the propriety of dissolving or retaining the injunction, is to be determined upon the bill and answer in relation to the agreement alleged in the bill to have been made between Joanna and the complainant. Such an agreement might have existed and not be within the direct and positive knowledge of the defendants; and if Joanna had been made a party defendant, the answer of Naomi and her husband that they had no knowledge of any such agreement, and were informed and believe that no such agreement existed,, would not have been sufficient to to dissolve the injunction.

Joanna should have been made a defendant. The complainant' denies her right to convey the property without reserving a life estate therein to him, and calls, in his bill, for a correction of the deed from Joanna to Naomi, so as to reserve or to procure for him such life estate. But he omits to make Joanna a defendant ; gives her no opportunity of answering his allegation; deprives the defendants of the benefit of the answer of Joanna; and calls only on Naomi and her husband for an answer as to the alleged agreement between him and Joanna.

The complainant has chosen to test only the consciences of Naomi and her husband as to this matter: he has not chosen to test the conscience of Joanna. Under these circumstances the answer of the defendants that they have no knowledge of any such agreement between Joanna and the complainant, and that they are informed and believe that no such agreement existed is a sufficient answer to the bill. The complainant knew that this was all the answer the defendants could give, and has omitted to make a defendant one who should have been made a defendant, and who could answer from her own knowledge to the existence or non-existence of such an agreement.

Tho correctness of this view appears, in this case, from the fact that the affidavit of Joanna, taken on the part of tho complainant, and which was read subject to the opinion of the court whether it could be considered on this motion, docs not sustain the allegation of an agreement between Joanna and the complainant as stated in the bill; but disproves it.

Injunction dissolved.


source: Caselaw Access Project

author: The Chancellor,

license: Public Domain

text:
    Peter T. Smith and others v. Brown and Hanson.
    A bill had been filed against “ The Trenton Delaware Falls Company,” on the ground of insolvency, on which Receivers had been appointed, and a sale made, by the Receivers, of all the real estate of the Company, free from all incumbrances. The proceeds were ordered to be paid in discharge of incumbrances, according to the priority thereof. The Trenton Bank held mortgages on all the real estate of the Company. The Falls Company, after giving the mortgages to the Bank, and before the filing of the said bill, sold a part of their real estate, all of which was so mortgaged to the Bank, to B. and H. The Bank bought at the Receivers’ sale all the real estate then held by the Falls Company; and received from the proceeds of the sale the full amount of their incumbrances; and the proceeds of the sale were not sufficient to pay P. T. S. the amount of a judgment obtained by him subsequent to the mortgages held by the Bank, and subseqyent to the sale by the Falls Company of a part of their real estate to B. and H. P. T. S. filed a bill against B. and H., to compel them to contribute towards the payment of his judgment so much as would have been a just proportion of the amount of the mortgages held by the Bank to be paid out of the lands so sold to B. and H., and which were covered by the mortgages to the Bank. After the filing of this bill, and after answer and replication filed and evidence taken, P. T. S. caused an execution to be issued on his judgment, and caused a sale to be made by the Sheriff of all the real estate of the Falls Company which had been so sold by the Receivers; under the idea entertained by his counsel that the said sale by the Receivers was void. At this sale the Bank bid a sum sufficient for the payment of the judgment of P. T. S.; and the Sheriff struck off the property to the Bank, and gave the Bank his Sheriff’s deed for it; and the judgment of P. T. S. was paid with the money received by the Sheriff from the Bank" on this sale. A motion was then made, on behalf of B.'and H., that the said bill of P. T. S. he dismissed with costs. The court dismissed the hill without costs.
    In 1843, a bill was filed by Peter T. Smith and others, judgment creditors of “ The Trenton Delaware Falls Company,” under the “Act to prevent frauds by incorporated companies,” ón tbe ground of the insolvency of the said Company ; and Receivers were appointed; and a sale was made by the Receivers of all the real estate of the Company, free from all incumbrances. The proceeds of the sale were ordered to be paid in discharge of incumbrances according to the priority thereof. The Trenton Bank held mortgages on all the real estate of the Falls Company. The Falls Company, after giving the mortgages to the Bank, and before the filing of the said bill, sold a part of their real estate, all of which was so mortgaged to the Bank, to Brown and Hanson. The Bank bought at the Receivers’ sale all the real estate then held by the Falls Company; and received from the proceeds of the sale the full amount of their incumbrances ; and the proceeds of the sale were not sufficient to pay the judgments of the said Peter T. Smith and others, or either of them. Peter T. Smith then filed the bill in this case, against Brown and Hanson, to compel them to contribute, towards the payment of his judgment, so much as would have been a just proportion of the amount of the mortgages held by the Bank to be paid out of the lands so sold to Brown and Hanson, and which were covered by the mortgages to the Bank. After the filing of this bill, and after answer and replication filed and evidence taken, Peter T. Smith caused an execution to be issued on his judgment against the Falls Company, and caused a sale to be made by the Sheriff of all the real estate of the Falls Company which had been sold by the Receivers; under the idea entertained by his counsel that the said sale by the Receivers was void. At this sale the Bank bid a sum sufficient for the payment of the judgment of P. T. S-, and the Sheriff struck off the property to the Bank, and gave the Bank his Sheriff’s deed for it; and the judgment of P. T. S. was paid with the money received by the Sheriff from the Bank at this sale. A motion was then made, on behalf of Brown and Hanson, that the said bill of Peter T. Smith be dismissed with costs.

      S. G. Potts and P. D. Vroom in support of the motion.

      W. Ilalsted resisted the payment of costs.
    He cited Halst. Dig. 634, 5; 9 Ves. 209; 8 Ib. 381, 6, 396; 1 Story’s Eq., sec. 634, 648, 651; 1 John. Ch. 413; 4 Russell, 326; 3 Cond. Eng. Ch. 697; 2 Green’s Ch. 272; 3 Barb. & Harr. Eq. Dig., sec. 40; 4 Ib. 124, 200, 508, sec. 14.
   The Chancellor,

The bill was not demurred to, but an answer was put in. The defendants do not in their answer allege that the sale by the receivers was void. If the receivers’ sale was good, the question whether the defendants should contribute towards the payment of the judgments of the complainants-is a question to be settled on the final hearing, on the pleadings and proofs; and a motion to dismiss could no.t now be entertained on any ground appearing in the cause. Both the bill and the answer proceed on the ground that the receivers’ sale was valid.

But since the filing of the answer the complainants have adopted a course of proceeding founded on the idea that the receivers’ -.sale was void, or, at least, that the purchasers at the receivers’ sale would be willing to pay for a sheriff’s deed, under execution at law issued on the judgments of these complainants, enough to satisfy those executions, rather than meet the question of the validity of the receivers’ sale. They issued executions on their judgments, and under them advertised and exposed to sale all the land sold by the receivers, as still the land of the Falls Company, the defendants in their judgments and executions; and at that sale the persons who bought those lands at the receivers’ sale bid, for a title to them from the sheriff under those judgments and executions, enough to pay the debts of the complainants.

The questions now raised are, whether the complainants shall be permitted to go on with the suit in this court, after they have made their debt at law, for the purpose of recovering from the defendants in this suit the costs which the complainants have incurred on this court; and, if not, whether the defendants in this suit are entitled to costs against the complainants.

It is a case without parallel; and without rule, other than that of discretion; because I cannot determine whether the complainants should be permitted to go on here for thier costs without determining whether the receivers’ sale was yalid or not; and this is a question not raised by the pleadings.

If the receivers’s sale was valid, then the course of the complainants in filing their bill was the only course left for them to try; and I cannot, on bill, answer and replication, hear a motion to dismiss for any thing appearing on the pleadings.

The complainants have made their money by executions at law;, .but that does not settle the question — whether the receivers’ sale was valid or not; and therefore does not settle the question of the propriety of the filing of the bill when it was filed. The purchase made under the executions, by the persons who had previously bought at the receivers’ sale, does not establish that the receivers sale was void; and therefore does not establish that these judgment creditors had a clear remedy witliout coming into this court by bill against these defendants for contribution.

I cannot, on motion to dismiss the bill on the ground that the complainants have made their money at law, determine that the receivers’ sale was void, and that therefore the complainants had. no ground for coming here when they filed their bill. The receivers’ sale may be good notwithstanding the purchasers also bought at the sheriff’s sale under the executions. I have now, therefore, no rule to go by in determining whether the bill was properly filed or not when it was filed, and no rule by which to determine whether the defendants should be allowed costs if the suit now stops.

The motion to dismiss the bill with costs is founded on the idea that these judgment creditors had an ample resort to make their money on their executions, and should not have come into this court at all; that there was no reason for calling on these defendants for contribution. Nothing which has been done establishes this. I do not see how I can give the defendants costs.

On the other hand, I do not think that the complainants are entitled to go on in this cause for the mere purpose of getting their costs. They could only get costs in this suit on the ground that the receivers’ sale was good, and that therefore, having no other remedy, or any property to look to, they would be entitled to come here against these defendants for contribution. But they have proceeded by executions at law on the assumption that the receivers’ sale was bad, or that, at least, it was so questionable that the purchasers at the receivers’ sale would pay enough to satisfy their judgments, rather than meet the question; and they have succeeded in getting their money. Shall they now be permitted to proceed in this court on a bill which assumes the validity of the receivers’ sale, for the mere purpose of getting their costs ? I think not. If the defendants had set up in their answer that the receivers’ sale was void, and the complainants had then issued executions at law and made their money, the defendants might have been entitled to their costs in this court. But the defendants in their answer affirm the validity of that sale, and I could not on the pleadings in this cause question the validity of that sale.

I see no course left but to dismiss the bill without costs.

Order accordingly.


author: The Chancellor.

text:
    John Gihon v. The Belleville White Lead Company and others.
    A bill by a subsequent mortgage against the mortgagor and prior mortgagees neither admitted nor denied the prior mortgages; and its prayer was, that the mortgagor bo decreed to pay the complainant’s mortgage, or that, in default thereof, the mortgagor and prior mortgaees be barred and foreclosed from all equity of redemption; and that the mortgaged premises be sold, and that out of the proceeds the complainant might be paid the amount of his mortgage; and for such other and further relief &c. A demurrer filed by the prior mortgagee was allowed.
    A bill by a subsequent mortgagee, making a prior mortgagee a party, may pray a sale of the interest mortgaged, a sale subject to the incumbrance of the prior mortgage; or, that he may be permitted to redeem the prior mortgage and have the premises sold to pay such redemption money and his own mortgage; or, that the mortgaged premises may, if the prior mortgagee consent thereto, he sold, and that out of the proceeds the mortgages may be paid according to priority.
    A prior mortgagee is not bound to notice the bill of a subsequent mortgagee filed on his mortgage, though he is made a defendant in the bill.
    If, upon a bill by a subsequent mortgagee as usually drawn here, the prior mortgagee takes such a course, either by answer, or by putting in his mortgage before the Master, as shows his consent, the mortgaged premises will be ordered to be sold, and the mortgages directed to be paid according to priority.
    Bill filed January 3, 1848, stating that, on the 1st Dec. 1846, Horatio N. Fryatt and Geo. W. Campbell gave their bond to Jas. McCullough, conditioned for the payment of $30,000, in one year, with interest semi-annually; and that, to secure the payment of the said bond, the said Fryatt, with his wife, and the said Campbell, with his wife, on the samo day, gave a mortgage to McCullough on the property in the bill described. That this mortgage was acknowledged on the 3d, and recorded on the 8th Dec. 1846. That on the 10th Dec. 1846, McCullough assigned the said bond and mortgage to John Gihon, the complainant. That since the date of the said bond and mortgage, and on or about March 15,1847, the said Fryatt and Campbell, with their respective wives, conveyed the said premises to “ The Belle-ville White Lead Company.”

      That prior to the giving of the mortgage before mentioned, and on the 1st April, 1845, John B. Hinton and Jas. A. Moore, being or pretending to be seized of the premises, gave a mortgage thereon to John Day, to secure' the payment of $12,000, which mortgage is recorded &c.; and which was afterwards assigned to Henry Ellsworth ; but whether the same is unpaid this complainant is not informed, and neither admits or denies, but leaves the party setting up and claiming the same to such proof as the law and this court shall direct.
    That after the execution of the last mentioned mortgage, and before the execution and delivery of the mortgage held by the 'complainant, the said Hinton and Moore, with their wives, executed and delivered a mortgage on the same premises to “ The President, Directors and Company of the Union Bank,” to secure the payment of $41,442 76 ; but whether the same be satisfied or is still a lien upon the said premises the complainant neither admits nor denies, but leaves the party claiming the same to such proof as the law requires and this court shall direct. And that said last mentioned mortgage was and is assigned to the said Henry Ellsworth.
    That, after the execution and delivery of the two last mentioned mortgages, one Evert Bancker, (to whom the said premises had before been? conveyed,) on or about the 11th April, 1836, (this is probably a mistake : it should be 1846,) to secure to one Mary E. De La Montague the payment of $6,000, executed a mortgage on the said premises, which was registered on the 18th July, 1836, (1846 ;) but whether the said mortgage be paid and satisfied, in part or in whole, the complainant is not informed and cannot tell; and whether and to what amount it is a lien on the premises the complainant neither admits nor denies, but leaves the parties interested therein to such proof as the law requires and as this court shall direct.
    That, on or about Oct. 26, 1839, Henry S. Dodge and his wife, to which Henry S. Dodge the said premises had before been conveyed, executed and delivered to Mary E. De La Montague a mortgage on the premises to secure the sum of $4,500; which mortgage is recorded; but whether it is still a lien on the premises, or to what extent, the complainant neither admits or denies; but leaves &c. (as before.) That the said Fryatt and Campbell and the said “ The Belleville White Lead Company” have at all times possessed and enjoyed, and still do possess and enjoy the said premises.
    That the complainant has frequently applied to the said Fryatt and Campbell and requested them to pay him the principal and interest due to him on his said mortgage.
    But now so it is, that the said “The Belleville White Lead Company,” Henry Ellsworth and Mary E. De La Montague, combining &c., pretend (among other pretenses stated) that there are other incumbrances upon the said premises, prior to the complainants said mortgage ; but when given, and to whom, or for what consideration, or what is the nature thereof, they refuse to discover; whereas the complainant charges that there are no such prior incumbrances as is pretended, or, if any such do exist, they are fraudulent and void as respects the complainant, or have been paid off and satisfied, and are kept on foot for fraud, to the injury and prejudice of the complainant, who had no notice thereof, and ought to be decreed to be delivered up to be can-celled, or declared to be of no effect against the complainant.
    The bill prays, that the said “ The White Lead Company,” to whom the premises have been conveyed by the said Fryatt and Campbell since the giving of the complainant’s mortgage, may be decreed to pay the principal and interest due on the complainant’s mortgage, by a short day; and in default thereof that the said “The Belleville White Load Company,” Henry Ellsworth, and Mary Do La Montague may be barred and foreclosed of and from all equity of redemption or claim of, in and to the premises so mortgaged to the said James McCullough by the said mortgage assigned by him to the complainant; and that the said premises may be sold ; and that out of the moneys arising from the sale the complainant may be paid the principal and interest due on his said bond and mortgage.
    “ The Belleville White Load Company,” Henry Ellsworth and Mary E. De La Montague are made defendants.

      To this hill Henry Ellsworth demurred; and for the cause of demurrer shows, that it appears, among other things, by the said bill, that the same was filed to foreclose a certain mortgage given by Fryatt and Campbell, with their wives, to McCullough, and by him assigned to the complainant; and that the complainant seeks also, by said bill, to foreclose a mortgage made by Hinton and Moore and their wives to John Day, and by said Day assigned to Henry Ellsworth, this defendant, and a mortgage made by said Hinton and Moore to “ The President, Directors and Company of the Union Bank,” and assigned by the said Bank to Henry Ellsworth, this defendant, which said mortgages are, as appears by the bill, incumbrances prior the complainant’s mortgage ; which the complainant has no power to do.
    And for further cause, of demurrer he shows, that the bill does not admit the validity of the mortgages held, as set forth in the bill, by this defendant, nor offer to redeem the same, nor pray any redemption ; but seeks to contest the validity of the said mortgages in this court.
    And for further cause of demurrer he shows, that the complainant, in and by his said bill, seeks to foreclose the mortgages of this defendant set forth in the bill, and sell the mortgaged premises discharged of the same, without the consent of this defendant and against the will of this defendant.
    And for further cause of demurrer shows, that the complainant shows no title to any discovery from or relief against this defendant ; and can only foreclose and sell the said mortgaged premises, under the said mortgage held by the complainant, subject to all the liens and rights of this defendant by virtue of his said prior mortgages. And that the said bill is multifarious, and joins distinct matters together which ought not to be united in one bill.
    And, lastly, that the complainant has not by his bill shown any ground of equity to entitle him to the relief sought against this defendant.

      Wm. M. Scudder in support of the motion.
    He cited 1 Green’s Ch. 396, 401; Seaton’s forms, 172, note, 167, 8; 11
      Wheat. 304; 1 Paige, 284; 4 Eq. Dig. 443, sec. 18; Ib. 453, sec. 11; 8 Edw. 106; Rev. Stat. 917, 18, sec. 64, 65.

      J. Chetwood contra.
   The Chancellor.

A prior mortgagee is not bound to notice the bill of a subsequent mortgagee filed on his mortgage, though he is made a defendant in the bill. The interest mortgaged to a subsequent mortgagee is an interest subject to the prior mortgage. The subject matter of the subsequent mortgage is the property or interest which the mortgagor has remaining in him after having given the first mortgage. This interest thus mortgaged to the subsequent mortgagee is an interest well known and understood, and may be foreclosed or sold under the decree of this court, on a bill by the subsequent mortgagee against the mortgagor of that interest. The subsequent mortgagee, on filing a bill for the foreclosure or sale of that interest, is not bound to make the prior mortgagee a party to his proceeding.

The prior mortgagee, though made a defendant, and served with process in the suit of the subsequent mortgagee, may take no notice of that suit, and file his bill on his own mortgage, and make the subsequent mortgagee a party. This is so from the nature of the different interests mortgaged. If it were not so, the control of the first mortgagee over his own securities, as to the time when ho will inforce them, and as to the time and mode of selling the property on execution, might be taken away from him by any person who might choose to make a loan and take a mortgage subject to his.

The subsequent mortgagee may file a bill either for a foreclosure and sale subject to the prior mortgage, or a bill to redeem the prior mortgages and for a sale to raise the redemption money and the amount of his own mortgage; or, if he files a bill and makes the prior mortgagee a party, and makes the proper prayer, and the prior mortgagee, by the course he takes in that cause, consents to it, the court may make a decree for the sale of the property, and that out of the proceeds the mortgages be paid according to priority.

In this case the bill is filed by a subsequent mortgagee and the prior mortgagee is made a party defendant. He need not have noticed the proceeding at all. JBut he filed a demurrer to the bill; and one cause of demurrer assigned is, that the complain-, ant asks to have the mortgaged property sold, and to be paid the amount of his mortgage out of the proceeds of the sale.

I think the bill and the prayer of it are not properly framed. It neither admits nor denies the prior mortgages; and its prayer is, that the mortgagor be decreed to pay the amount of the complainant’s mortgage, or that, in default thereof, the mortgagor and prior mortgages maybe barred and foreclosed from all equity of redemption or claim of, in and to the mortgaged premises; and that the mortgaged premises may be sold, and that out of the proceeds he may be paid the amount of his mortgage; and for such other and further relief &c.

The facts stated in his bill do not entitle him to either branch of the specific relief prayed; nor to any relief under the general prayer. What he cannot get without the consent of the prior mortgagee he may properly be said not to be entitled to. He has neither prayed that the equity of redemption mortgaged to him may be sold, or that he may be permitted to redeem.

A man holding a subsequent mortgage may file a bill stating that a prior mortgage has been given, and setting up that it is fraudulent, or void, or has been paid, and ask to have it so decreed, and make the person holding it a party, and ask to have the premises sold to pay the mortgage; and if he shows that the prior mortgage is void, or has been paid, it will be put out of his way. But if it turn out that the prior mortgage is good, the mortgaged premises cannot be ’ sold to pay the prior mortgages without the consent of the prior mortgagee; all that the subsequent mortgagee could sell, without the consent of the prior mortgagee, would be the equity of redemption mortgaged to him.

I do not consider this a bill of that character. The complainant sets out the prior mortgages, and says, as to each of them, that he neither admits nor denies it. He then says, that the mortgagor and prior mortgagees, combining &c, pretend that there are oth- or incumbrances, prior to his mortgage; f whereas he charges there are no such prior incumbrances as is pretended, or, if any such do exist, they are fraudulent and void as against him, or have been paid off, and ought to be decreed to be delivered up to be cancelled or declared to be of no effect against him.

This cannot be considered as a bill attacking the validity of the mortgages which the complainant has set out in his bill as prior to his, and which he says he neither admits nor denies. The stating part of the bill shows nothing against the validity of those mortgages; makes no allegation of any facts or circumstances on which the complainant relies as a ground on which to contest their validity.

As a bill in the other aspect, i. e., with a view of obtaining a sale of the mortgaged premises to pay the mortgages according to their priority, the bill is defective. It prays for nothing to which he would be entitled as a subsequent mortgagee.

A bill by a subsequent mortgagee, i. e., a mortgagee of the equity of redemption, may pray a sale of the interest mortgaged to him, a sale subject to the incumbrance of the prior mortgage ; or, that he may be permitted to redeem the prior mortgage and have the premises sold to pay such redemption money and his own mortgage; or, that the mortgaged premises may, if the prior mortgagee consent thereto, be sold, and that out of the proceeds the mortgages may be paid according to priority.

But if the prior mortgagee refuses to consent to a sale on his mortgage, the complainant on the subsequent mortgage must take one of the other modes of relief prayed.

He can at least obtain a sale subject to the incumbrance of the prior mortgage.

If upon a bill by a subsequent mortgagee as usually drawn here, the prior mortgagee takes such a course, either by answer, or by putting in his mortgage before the master, as shows his consent, the mortgaged premises will be ordered to be sold, and the mortgages directed to be paid according to priority.

The complainant in this case asks nothing which he is entitled to as against the prior mortgagees, and therefore should not have brought them into court.

D emurrer allowed ; with leave to amend.

Order accordingly.


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    Lucius B. Nutting v. Christopher Colt, Jun.
    A person employed by another in a manufacturing establishment at a salary of $500 a year and one-fourth of the profits is not a partner.
    A. employed B. in a manufacturing establishment at an annual salary of $500 and one-fourth of the profits, and B agreed that A might use his name as a partner in the business if A. should deem it advisable. The name of A. & Company was assumed. Afterwards, A being about to create a lien on property in the establishment, B gave a written certificate in which he stated that he, “ one of the firm of Colt and Company,” did not possess any interest in the property used by the Company, and did not claim any right in or to the same on account of his being a partner of the Company or on any other account. A. thereupon gave a mortgage on property in the establishment to secure acceptances of drafts to be drawn in the name of A. and Company. B. afterwards filed a bill against A. stating that he was a partner, and charging that A. had received large sums and applied them to his own use, and kept no proper accounts thereof, and refused to account to the complainant; and prayed an injunction, and the appointment of a Receiver. The injunction was allowed.
    On answer, the appointment of a Receiver was denied; and the injunction was dissolved.
    On the 29th June, 1847, the following article was entered by and between Christopher Colt, Jun., and Lucius B. Nutting.
    “ Memorandum of an agreement made the 29th Juno, 1847, between Christopher Colt, Jun., of Paterson, New Jersey, of the one part, and Lucius B. Nutting, of Dedham, Massachusetts, of the other part. Said Colt agrees to employ said Nutting as a Silk Dyer and Manufacturer, at Paterson aforesaid, for the term of one year, with an understanding that the same is to be continued to five years if mutually agreeable, at an annual salary of §500 and one-fourth of the profits of the dying and manufacturing establishment in which he is employed. Salary to be drawn as often as be may want, when due him.
    Said Nutting agrees, on his part, to devote all his time and attention to the best interest of the dying and manufacturing department, and to commence for said Colt the 5th day of July, 1847 ; and to have his name used as a partner in said business should said Colt deem it advisable.”
    Nutting entered into his employment, under the said article, at the time therein specified.
    The name of Colt and Company was assumed as the name under which the business was carried on.
    On the 2d October, 1847, Colt being about to execute a writing creating a lien on the property in the silk manufactory, Mr. Hopper^ a counselor at law in Paterson, who was to draw the necessary papers, knowing, as he says in his testimony, that the business was carried on in the name of Colt & Company, told Mr. Colt that if any other person was concerned with him in the business it was necessary that such other person should execute the papers with him. Mr. Colt, in answer, said that Mr. Nutting was in the mill with him, but had no interest in any of the property. Mr. Hopper then told Colt that, to avoid all question on that subject, he wished to have Mr. Nutting’s signature to that effect. Colt requested Mr. Hopper to draw up such a paper as he wanted signed by Nutting and he would get Nutting’s.signature to it. Mr. Hopper accordingly drew a writing in these words: “This is to certify that I Lucius B. Nutting, one of the firm of Colt & Company, carrying on the business of silk manufacturing at Paterson, New Jersey^ do 'not hold or possess any interest in the machinery, or any of the property used by the said company, or the silk, raw or manufactured; and do not rVla.im to have any right or title in or to the same on account of my being a partner of the said company or on any other account whatever. 'Witness my hand this 2d day of October, 1847.”
    This writing was signed by Nutting and returned by Colt to Mr /Hopper; and Hopper then drew a mortgage on the property in the mill from Colt to Robert Morell, to secure him for acceptances of drafts to be drawn in the name of “ Colt & Company,” to be used in the purchase of silk and materials for carrying on the said silk manufacturing business. The mortgage was executed and delivered.
    On the 20th December, 1847, Nutting exhibited his bill, stating, that on the 29th June, 1847, he agreed with Colt to become a partner with him in the business of manufacturing, twisting and dying silk ; and that thereupon a certain agreement was made between them, [setting out the agreement above set forth]. That said business was entered into and carried on by them pur» suant to the provisions of the said agreement, and still continues. That Colt has been in the habit of receiving large sums of money, and of drawing all checks, drafts and notes on the partnership account; but that ho has not duly entered all such transactions in the partnership books of account; but hath entered therein a part only of said transactions, and has kept the complainant in ignorance. That Colt has, from time to time, applied to his own use, from the receipts and profits of the business, large sums of money exceeding the proportions thereof to which he was entitled, and refuses to come to a settlement with the complainant. The bill states that Colt has greatly mismanaged the business, in raising largo sums on the bills, notes and drafts of said firm at high rates of interest: and that Colt has applied the assets and effects of the firm to his own private use, to an amount beyond what he is entitled to. That the firm is indebted in large sums to different persons, and that said debts are now due. That upon a settlement of the accounts between them it will appear, that a largo balance is due from the defendant to him in respect to said partnership dealings; but that nevertheless Colt is proceeding to collect the partnership debts and apply the same to his own use ; which the defendant is enabled to do by means of his having possession of the books of account, and all the silk manufactured being carried to his house as soon as made.
    The bill prays an injunction restraining Colt from collecting and receiving any of said partnership debts"and moneys; and the appointment of a receiver; and a dissolution.
    An injunction was allowed.
    On the 5th February, 1849, Colt putin his answer; and a notice was given of a motion to dissolve the injunction.
    A notice was also given, on the part of the complainant, of a motion to be made, on the same day, for the appointment of a receiver; and also of a motion for an attachment for an alleged breach of the injunction.
    Depositions were read on the argument of the several motions.

      B. W. Vandevoort for the complainant.
    He cited Story’s Eq. Jur. sec. 846, 7, 852; 4 Mad. Rep. 252 2 Daniels Rep. 250.

      .Silas D. Canfield for the defendant.
   The Chancellor.

The question is, whether, under the article of agreement made between the parties, Nutting has any such rights as against Colt as entitle him, under the facts in other respects stated by the bill, to prevent Colt from receiving moneys due for goods sold from this establishment; and to have a receiver appointed to receive the same, and to take charge of the other property in the establishment.

There are cases in which, upon principles of policy, persons will be held to be partners in reference to third persons who as between themselves are not partners, and have not in reference to each other the rights of partners.

Whether, under the circumstances of this case, Nutting would as to third persons be held to be a partner and liable to debts, it is, perhaps, not neecessary to say.

As between him and Colt he is not a partner, but a person employed by Colt, at a salary of $500 a year and one-fourth of the profits. 4 Paige 148.

Nutting was to have his name used as a partner should Colt deem it advisable. Colt assumed the business name of Colt & Company.” If Nutting’s name had been used, and he thus held out as a partner, he might, under such an agreement for a fourth of the profits,'be held to be a partner as to creditors. Ibid.

And if, under such an agreement, Colt had thought it advisable to use Nutting’s name, and-had, by the use of it in connection with his, contracted debts for which Nutting thus became liable with him, there might be an equity even in favor of Nutting, as against Colt, that the property and assets thus brought into the establishment by the credit of Nutting’s name in connection with Colt’s, and at the expense of Nutting’s liability in connection with Colt’s, should, at Nutting’s instance, and as against Colt, though as between them they were not in reality partners, be held liable, in relief of Nutting, for the payment of the debt so contracted; and that Colt, if his conduct evinced a disposition, after the debts so contracted and for which Nutting thus become justly liable with him, to use and dispose of the property and assets in such way as to withdraw them from any application thereof to the payment of such debts, should be restrained from collecting the dues of the establishment &c, and that a receiver should be appointed.

But there is nothing in his case calling for a receiver on any such ground of equity.

Nutting consented to such a use of his name as would make him liable as a partner to third persons, and yet agreed to terms by which he was not a partner as between him and Colt. This necessarily carried the idea that Colt was to have the control of the property and assets of the firm. Nutting relied on Colt’s integrity and fidelity in the application of the assets to the payment of the debts that should be contracted.

There is no evidence that Colt, at the time of the application for an injunction and receiver, had betrayed Nutting’s confidence. The bill says that a large amount of debts was due ; it does not say payable ; and the answer and depositions show, that all the drafts and acceptances which had become payable were met as they became payable; and no sufficient reason is shown for concluding that Colt, had he not been stopped from collecting, would not have continued to pay the acceptances as they became payable.

I am of opinion that there is no sufficient ground for the appointment of a receiver.

As to the matter of account, the cause can proceed for the purpose of ascertaining what profits have been made, with a view to the complainant’s recovering his fourth part thereof.

The injunction, in this view, must be dissolved.

As to the attachment, no sufficient violation of the injunction has been shown.


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    John Leonard and others v. Abraham Sutphen and others.
    A commission for the examination de bene esse of a non-resident infirm witness may be awarded before issue joined.
    The snbpena in this case was returned the first day of the present term, June term, 1849. At the time of the service of the subpena a notice was, also, served on the defendants of an application to bo made, on a day in this term more than ten days after the service of the subpena, for a commission for tbe examination of a witness 'de bene esse. Tbe affidavit upon which the commission was applied for stated that the witness resided out of the State, and was aged and infirm, and was a material witness in the cause.
    The question submitted to the court was, whether a commission could be awarded before issue joined in tbe cause.
   The Chancellor.

The “Act authorizing commissions and tbe taking of depositions,” Rev. Stat. 959, by the 1st section thereof, provides, that if a material witness reside out of the State, or, if in this State, he ancient or very infirm or about to go out of the State, a commission may he awarded to examine such witness de bene esse, upon interrogatories approved by the court; and, by the 10th section thereof, that the deposition taken under the commission shall be as competent evidence as if tbe witness bad been examined on the hearing; provided it appear to the satisfaction of the court that the witness reside or is gone out of the State, or is dead, or by reason of age or infirmity is not able to attend the court, but not otherwise. A commission for an examination de bene esse is within the language of the statute in the case made by the affidavit, and is, also, within the spirit of the statute. Non-residence, alone, of a material witness is a sufficient ground for a commission. If issue is joined in the cause a commission will be awarded for his examination abso-. lutely. And it would seem that by the statute non-residence, alone, is sufficient for a commission to take the examination de bene esse, and before issue joined.

In this case, the affidavit states, also, that the witness is aged 84 and is infirm. I see no reason why a commission should not go, before issue 'joined, to take his examination de bene esse.

Order accordingly.


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    Charles F. Durant v. David A. Williamson and others.
    An injunction was applied for restraining the defendants from continuing the working of steam engines in a factory near the dwelling house of the complainant and other buildings owned by him and occupied by his tenants, on the grounds that the steam engines, when in operation, shook and injured the said buildings, and that the business carried on in the said factory was a nuisance to the neighborhood. It appeared, by affidavits read in opposition to the motion for an injunction, that the complainant had brought an action at law against the defendants for the same alleged injury, and that the jury had found a verdict for the defendants. The injunction was denied.
    The hill states that the complainant, Charles F. Durant, is seized in fee and possessed of lots 33, 34 and 85 on Hudson street, in Jersey City ; and has- been so seized and possessed from March 3, 1834. That, in the latter part of the fall of 1846 and the winter and spring of 1847, he built on said lots 34 and 35 two three-story brick dwelling houses ; that they were completed about the 1st May, 1847, and were built in the best manner, upon foundations of stone ; pains having been taken by the builder to procure firm foundations therefor; and that the said buildings are in every respect completely built and finished. That the building on said lot numbered 35 is contiguous to and adjoins the building on lot 36 on Hudson street; and that the said two buildings of the complainant and the buildings numbered 36, 37 and 38 in Hudson street have one continued front wall on the street; the said buildings numbered 86, 37 and 38 having been built prior to the time when the complainant built his said two buildings numbered 34 and 35, the said buildings being built partly on the site of another building which had theretofore stood on lot 34, and which was burned down in the early part of 1846. That the said building which was burned down was one of four brick buildings which were built together at the same time and with one continuous front wall, about 42 years ago, on said lots 34, 35, 3 6 and 37 on Hudson street, and were put up and used for commercial purposes. That the said lot 33, being on the corner of Hudson and Sussex streets, is in part a vacant lot, and has been and is used by the complainant as a court yard and entrance to the building wherein the complainant resides and for 14 years past has resided, and which last mentioned building is situated on the rear of the said lots of the complainant, and has been built for the period of about SO years. That he caused the said buildings so built by him on lots 84 and 35 to be built and finished in the best manner, intending to rent them to gentlemen, the situation being peculiarly pleasant, and, as he believes, the best in the vicinity, and the neighborhood well built up with private residences, many of which are of the best class, and that part of the city being densely populated. That after' the said two houses were so built by the complainant, and in or about Nov. 1848, David Á. Williamson, Edward H. Mann and 'Charles T. Griffith, doing business under the name and firm of Williamson, Mann & Co., entered into the occupation of the building numbered 37 in Hudson street, and have ever since remained in possession thereof, and still occupy the same, ostensibly as a coffee and spice mill, but in reality as a place for the drying and grinding of drugs of the mogt nauseous character, as well as for burning and grinding of peas, coffee and spices.
    That at or shortly before the commencement of such occupancy of said building 37 by said Williamson, Mann & Co., and after the complainant built his said two dwelling houses, it was raised to five stories, it having been, up to that time, three stories. And the said Williamson, Mann & Griffith, upon such occupancy thereof by them, put into the said building certain machinery, consisting of six run of grindstones, distributed throughout said building, and which were driven by a steam engine placed by them in a building situated immediately in the rear of said building so occupied by them.
    That ever since their said occupancy of said building they have caused, and’ still do cause to be run the said machinery, or some part thereof, in the said-building so occupied by them; and that the operation of the said machinery continually shakes and jars the said two houses of the complainant on lots 34 and 35. That said jarring and shaking is so great that it constitutes a great, and to many persons an insuperable objection to the occupancy of said houses; the said machinery being run, with mere or less severity, every day except Sunday, from about 7 A. M. to 6 or 7 P. ,M., with but little if any intermission; and, when in operation, causing the doors and windows of the complainant’s said houses to rattle continually; and causing loose articles of furniture, fenders, mantel ornaments, cups and saucers on a table to rattle and keep constantly in motion ; the motion of the said houses caused by the operation of the said machinery of the defendants being so great as to be perfectly perceptible to a person seated on a chair placed on the floor thereof, and rendering the said houses far less desirable as places of residence than they would otherwise be ; insomuch that some of those who have occupied the complainant’s said houses, and other disinterested and judicious persons acquainted with the effect of said machinery on the complainant’s said two houses and with the nuisance of stenches occasioned there by the business carried on by the' said defendants in said building occupied by them and hereinafter mentioned, have publicly declared that they would not reside in the complainant’s said houses rent free, and that their objection is founded solely on the fact of the said jarring and shaking and the said other nuisance of said stenches.
    That the defendants have, also, ever since their occupancy of said factory, carried on, and still carry on, in said building occupied by them, a business (being, as the complainant verily believes, the grinding of nauseous drugs,) which has caused and still does cause stenches of the most disgusting and nauseating character to pervade, for a great part of the time, the said two dwelling houses of the complainant and also the said dwelling house of the complainant occupied by him and his family. And that the complainant believes and charges, that a considerable portion of the business carried on by said Williamson, Mann & Griffith in the said building occupied by them is the drying and grinding of drugs, many of which are of the most offensive and disagreeable character.
    That, by reason of the said shaking and jarring and the said disgusting, nauseous and noxious stenches, the tenants of the complainant occupying the said houses numbered 34 and 35 have been and are, both in sickness and health, exceedingly offended and annoyed; and the complainant and his family, in his said dwelling house occupied by them, have been and are greatly annoyed, disturbed and offended by the said foul, noxious and noisome stenches.
    That, by reason of the said j arrings and shakings of the complainant’s said two buildings numbered 34 and 35, the said buildings have been and are, as the complainant verily believes, greatly injured; and the complainant hath thereby sustained and still doth sustain very considerable damage in not being able, on account thereof and of the other nuisance of said stenches, to get as much money for the renting thereof as otherwise he would have done, and also in the deterioration of the said buildings by the jarring and shaking the walls thereof as aforesaid.
    The bill prays an injunction restraining the defendants from running their said machinery in the building occupied by them in such manner as in anywise to jar or shake or otherwise interfere with the- complainant’s said dwelling houses or either of them, and from causing, permitting or suffering any foul, noxious, nauseous, disgusting, noisome or hurtful smells, odors or stenches to arise from said building and premises occupied by the defendants and pervade the complainant’s said dwelling houses and the atmosphere in and about the same.
    This bill being presented, and a preliminary injunction asked, the court ordered notice of the application to be given to the defendants.
    At a subsequent day the parties appeared, and, the bill being again read, affidavits were read on the part of the defendants in opposition to the motion for a preliminary injunction.
    The affidavit of Williamson and Griffith, two of the defendants, states, that the building occupied by Williamson, Mann & Grffith is one of four stores which, they are informed by old residents of Jersey City, were built about 1806, and were first occupied for commercial purposes, and that for some 20 years last past they have been used for manufacturing purposes; that the building occupied by the defendants was used at one time as a ship bread bakery; that it was afterwards used as a foundry and blast furnace and turning mill which was driven by a steam engine.
    That the dwelling houses of complainant on Hudson street are erected on the site of one of the stores built in 1806 ; that it was burned down some two years ago; that when it was burned and before, it being then owned by complainant, an oakum factory was carried on there, driven by steam power.
    They say that the store No. 86 Hudson street, the store next south of the one occupied by them, and between them and the complainant’s dwelling houses on Hudson street, is occupied by Mr. Deen as a tobacco factory driven by horse power. That they have been informed by Deen and others that it has been so occupied as a tobacco factory for 12 or 13 years last past. They say there is an extensive oil manufactory on the next block below on Hudson street and opposite the complainant’s house ; that it produces a very disagreeable smell in the neighborhood; that they frequently use rancid oil in that factory. That they are informed and believe that said oil factory has been located there for 17 years past; and that there was a patent leather factory in Sussex street opposite the complainant’s house which was burned down some time since.
    They further say that there is a large soap factory in York street, about half way up the block from Hudson street, and that this factory produces a very disagreeable smell.
    That they formerly carried on their factory at No. 67 and 69 Washington-street, New-York. That the reason of their removing their factory to Jersey City was their being burnt out in June, 1847. That they leased of Mr. Coles the building they now occupy, and he commenced fitting it up for their accommodation in June, 1847. That they expended in fitting up this factory, in machinery and other fixtures and apparatus, upwards of $10,000, in addition to the expense incurred by Mr. Coles in putting the building in order for them. That they carry on an extensive business, and employ constantly some twenty or thirty men. That it would be a great and irreparable injury to them to suspend their factory. That they wrould not stop for $100 a day.

      They deny that there are any noisome stenches or smells produced by their manufactory, or any disgusting or nauseous smells, or any noxious or foul smells produced by their said factory, that can in any way injure or annoy the complainant and those occupying his dwelling houses. And, to the best of their knowledge, they deny that they have injured the houses of the complainant by shaking or jarring the same. That the complainant’s houses are built on reclaimed land; and if the walls are cracked it is owing to the nature of the ground 'on which the foundation is laid. That the fronts of the said houses adjoining the defendant’s factory are covered with stucco plastering, that they have examined this plastering, and cannot perceive that it is at all cracked. That they have been informed by competent judges and believe that the complainant’s houses adjoining their manufactory are cheap, slightly built houses; that they are lightly timbered, and are shaken by carriages and carts passing over the pavements in front. They say that the house in which the complainant and his family reside is situated on Sussex-street, at some distance from their factory, and cannot possibly be affected by the machinery in their factory.
    That that part of Hudson street in which their factory is located is used and occupied for the most part by manufactories, shops, stores, lumber yards, coal yards and the like purposes, and is an appropriate place for their business to be carried on. That the complainant’s houses in Hudson-street were built on the site of a store house and manufactory; that he well knew that he was building his said dwelling houses in a locality devoted to commercial and manufacturing purposes. That Hudson-street is the main business street in Jersey pity : that it is the front street on the river. That the two houses of the complainant are the only houses fronting on Hudson-street, between Grand-street and the corner of Hudson and Morris-street, except one on the corner of Sussex-street.
    That they verily believe the complainant has not lost any rent in consequence of their manufactory. That one of complainant’s houses on Hudson-street has been constantly occupied by the same person, and, as they are informed and believe, at the same rent, and that both of complainant’s houses are rented.

      That the complainant, after an unsuccessful attempt and application to the grand jury of Hudson county, to have the defendants indicted, in May, 1848, commenced an action at law for the same alleged injuries set out in his hill in this cause, as will appear by his declaration filed in that suit, a copy of which is annexed to their affidavit. That the said cause came on for trial at the November term offthe Hudson Circuit Court, before the chief justice; and that the jury, upon the same case as that set out in the complainant’s bill, (as will appear by the state of the case settled before the chief justice and signed by the attorneys of the parties, to he used on the argument of a motion for a new trial, a true copy of which is annexed to their affiadavit,) found that the complainant was not entitled to any damages, he not having sustained any injury from the defendants said factory.
    They further say that the complainant has commenced another action against them, laying his damages at $5000, the writ in which action was returnable to the February term, 1849, of the Hudson Circuit Court. That the defendant Mann is absent in Europe.
    The affidavits of a number of other persons residing in the neighborhood were procured, going to show that no bad smell proceeded from the factory of the defendants ; and that there was no jarring of buildings in the vicinity.
    The defendants also put in a plea that the alleged wrongful acts set forth in the bill have been tried by a jury in an action of trespass on the case brought by Durant against Williamson; and that the jury found a verdict of not guilty.
    A motion for a new trial in that case is still pending.

      Runyon and G. A. Vroom, in support of the motion for injunction.
    They cited Story’s Eq. Jur. sec. 95; Jeremy’s Eq. 309; 2 Story’s Eq. Jur. sec. 925, 6; 3 Daniels Pr. 322; 9 Paige, 575; 2 Car. and Paine, 485; 1 Burr. 337; 2 Selw, N. P. 1105; 4 Bingh. New Cases 1016; 5 Scott, 500; 2 Ib. 174.

      W. Rutherford contra.
    He cited 1 Smith’s Ch. Pr. 240; 13 Ves. 167; 3 P. Wms. 395; 2 Atk. 113; 17 John. Rep. 93; 100; 1 Green’s Ch. 57; 3 Ib. 245; 3 John. Ch. 287; 3 Green’s Ch. 234, 236, 355; Metcalf 118; Eden on Ing. 236, 327; 6. John. Ch. 19; People v. Cunningham, 1 Denio; 1 Halst. Ch. 324; 9 Paige, 504; 19 Ves. 350; 1 Honk. 599; Drury on Ing. 246.
   The Chancellor.

In the present state of the proceedings at law I am unwilling to grant a preliminary injunction.

Without reference to the proceedings at law I should doubt whether a preliminary injunction should be allowed. It is a case for proofs on both sides, the remedy sought is perpetual injunction.

Motion denied.


text:
    Ezra Parkhurst v. Josiah F. Muir.

      To a bill by one of two partners against the other for an account, the bill saying nothing'of any settlement having ever been made between them, the answer set up a settlement up to a certain time, and gave an account since thejsettlement; and the complainant’s solicitor took an order of reference to state the accounts.

      lie Id, that the Master could not disregard the settlement.
    A bill was filed by Ezra Parkhurst against Josiah F. Muir for the dissolution of the partnership of which they were the only members ; and for an account of the partnership transactions; and for the appointment of a receiver. Nothing was said in the bill of any settlement having ever been made between them.
    The answer set up a settlement between them up to a certain time, and gave an account of the partnership transactions since that settlement. A motion was made for a receiver, which was denied. And thereupon the complainant’s solicitor took an order of reference to a master to state the accounts. When the parties appeared before the master the complainant’s counsel insisted that the master should state the accounts from the beginning of the partnership. The counsel of the defendant insisted that the effect of the order, under the pleadings in the case, was to confine the account to the transactions of the partnership since the said settlement. And the master postponed the matter, to give an opportunity to take the opinion of the court upon the question.
    The matter was afterwards stirred before the court; and a motion also made for a modification of the order of reference, so as to confine it to the partnership transactions since the settlement, if the court should think a modification necessary.

      Runyon and A. Whitehead for the defendants.
    They cited 15 Wend. 83; 7 Paige, 573; Cooper’s Eq. Pl. 278.

      F, B. Chetwood and W. Pennington for the complainant.
   The Chancellor.

On a reference like this, on such a state of pleadings, the master was not at liberty to disregard the settlement. Grounds for impeaching the settled account should have been laid in the bill, if the complainant supposed there were any such grounds, so that the defendant could answer as to them.

If proper grounds can be laid before the court, an 'amendment of the bill may be allowed.